B.C. v. Durham Catholic District School Board, 2011 HRTO 2062

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

B.C. Applicant

-and-

Durham Catholic District School Board Respondent

AND B E T W E E N:

B.C. Applicant

-and-

Durham Regional Police Services Board and Sara Foote Respondents

INTERIM DECISION

Adjudicator: Mark Hart Date: November 14, 2011 Citation: 2011 HRTO 2062 Indexed as: B.C. v. Durham Catholic District School Board

WRITTEN SUBMISSIONS BY:

B.C., Applicant: Sumil Gurmukh, Counsel Durham Catholic District School Board, Respondent: Dolores Barbini, Counsel Durham Regional Police Services Board and Sara Foote, Respondents: David Cowling, Counsel

1These are two Applications made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”) both dated June 23, 2009. The underlying complaints were filed with the Ontario Human Rights Commission (the “Commission”) on June 27, 2008.

2The purpose of this Interim Decision is to address the following matters:

a) The applicant’s Request for Order dated August 29, 2011 seeking production of certain documents from the respondents;

b) The applicant’s proposed expert evidence;

c) The request made by the respondents Durham Catholic District School Board, Andy J. Fedak and Susan Duane (the “school board respondents) for removal of the personal respondents;

d) Whether the allegations in paragraphs 9 to 11 of the applicant’s Statement of Additional Facts are within the subject-matter of the complaint; and

e) Various case management matters.

Request for production

3The applicant has made a request for production from the school board respondents of the race and/or ethnicity of those students in the respondent school board who were subject to suspension or expulsion during the 2005/06, 2006/07 and 2007/08 academic years. In the event that this information is not collected by the respondent school board, the applicant requests production of colour copies of the student photo ID cards of those students who were suspended or expelled during these school years with their names redacted or, in the alternative, school yearbooks for these school years (presumably with the names of these students to be disclosed so that the applicant can identify their pictures from the yearbooks), or ,in the further alternative, an order that the respondent school board compile information regarding the race and/or ethnicity of these students.

4This request is opposed by the school board respondents on the basis that the requested material and information is not relevant to the matters at issue in this proceeding. These respondents also note that the respondent school board does not collect information regarding the race or ethnicity of its students.

5An issue has arisen between the parties as to whether the complaint against the school board respondents alleges systemic discrimination. In my view, the answer to this question is quite simple. As against the school board respondents, the issue before this Tribunal is whether the applicant experienced discrimination because of her race, colour or ethnic origin arising out of the three day suspension imposed upon her in April 2008 due to an incident of alleged fighting and bullying. This is not a broad inquiry into whether racialized students generally experienced racial discrimination in relation to suspensions or expulsions from the respondent school board. To the extent that the term “systemic discrimination” is being used to attempt to expand the scope of the issues in this proceeding to generally allege that racialized students other than the applicant may have experienced racial discrimination in relation to suspensions or expulsions, that issue is beyond the scope of the subject-matter of the allegations before me. The subject-matter of the allegations before me are focused on a particular individual, namely the applicant, and the suspension imposed upon her at a specific time, namely in April 2008.

6To say this, however, does not resolve the production request before me. Rather, it is to focus the issue on the subject-matter of this proceeding in order to assess the arguable relevance of the material requested. While this is a complaint of racial discrimination by a specific individual, broader systemic or pattern evidence may be arguably relevant to the issue of whether the applicant experienced racial discrimination. However, the material sought must be arguably relevant and proportional to the specific circumstances giving rise to the applicant’s suspension, which is, as noted above, the subject-matter of the Application. .

7In this case, the imposition of suspensions and expulsions on Ontario students is governed by Part XIII of the Education Act. Regulation 472/07 under that Act describes the factors that must be considered by a principal or designate before imposing a suspension or expulsion. These factors were developed and came into force on July 1, 2007 in order to ameliorate the impact of so-called “zero tolerance” discipline policies and a mandatory discipline system on pupils from racialized communities. The imposition of discipline on the applicant took place in the context of the newly promulgated requirement to exercise discretion in the imposition of discipline on the basis of the factors set out in the regulation.

8As a result, the question before this Tribunal as against the school board respondents is whether the applicant’s race, colour or ethnic origin was a factor in the exercise of discretion to impose a three day suspension on the applicant in April 2008. Viewed in this context, it is my view that the applicant’s broad request for material and information regarding the suspension or expulsion of racialized students across the entire respondent school board is not arguably relevant to the issue before this Tribunal regarding the exercise of disciplinary discretion by a specific principal or designate at a specific school. At most, in my view, the relevance of the requested material and information would need to be circumscribed to the specific high school attended by the applicant at the relevant time, namely All Saints Catholic Secondary School (“All Saints”).

9I also am concerned about the time periods for which this material and information is requested, given the change in the system for imposing discipline which came into force on July 1, 2007. In my view, material and information relating to the suspension or expulsion of racialized students in prior school years in which the discipline was imposed under a different disciplinary regime is not relevant to the issue before this Tribunal.

10Finally, in my view, in order for the material and information sought to be arguably relevant to the issues before this Tribunal, the reason or basis for the suspension or expulsion must bear some relation to the reason for the imposition of the three day suspension on the applicant, which was for fighting and bullying.

11Having said all of that, I am prepared to order the respondent school board to produce to the other parties and file with this Tribunal material and information regarding the suspension and/or expulsion of students at All Saints during the 2007/08 school year on the basis of fighting or bullying. In my view, such material and information is arguably relevant to the issues before this Tribunal to the extent that it may (or may not) reveal a pattern by the administrators at this high school of imposing harsher discipline on racialized students, and therefore may be relevant to the question of whether harsher discipline was imposed on the applicant by these same administrators because of her race.

12I take the point made by the school board respondents that, in order to assess or evaluate any discipline imposed, the context in which the discipline was imposed is important, particularly in light of the requirement to consider the regulatory factors. Merely providing information that a particular student was suspended or expelled and a picture of that student would not provide this necessary context. In the case of the applicant, I note that in addition to the notice of suspension sent to the applicant’s parents, there is a Principal’s Report to the Disciplinary Committee and typewritten notes made by various school administrators that provide the context leading to the discipline imposed. In my view, disclosure of such material would be important in order to provide the necessary context for the imposition of discipline on other All Saints students for fighting and/or bullying during the 2007/08 school year.

13Accordingly, within 30 calendar days of the date of this decision, I order the respondent school board to disclose to the other parties and file with the Tribunal: a list of all students at All Saints who were disciplined for fighting and/or bullying during the 2007/08 school year showing the date and nature of the discipline imposed; for each such student, the letter providing notice of discipline and any Principal’s Report or other material setting out the context in which the discipline was imposed; and a colour copy of each student’s photo, whether from a photo ID card or from the school yearbook. The names of the disciplined students (and of any other students whose names may be mentioned in this material) are to be redacted and replaced either with the student’s initials or a non-identifying title such as “Student A”.

14If there are any issues or concerns by the respondent school board regarding its compliance with this order, such issues or concerns are to be raised with this Tribunal within 10 calendar days of the date of this Interim Decision and appropriate direction shall be provided.

15I am well aware that the effect of this order is to require disclosure of sensitive and otherwise confidential material and information. I wish to remind all parties of their obligation not to use or disclose any material or information received in the context of this proceeding for any purpose other than to address the issues in this proceeding. This is not information that this Tribunal wants to see bandied about on social media or even whispered among friends, and any improper dissemination of such information will be dealt with seriously by this Tribunal.

16The applicant also has requested production of information regarding the race and/or ethnicity of any students who were suspended or expelled by the respondent school board and who also were charged with an offence under the Criminal Code. One difficulty with this request is that, to the extent that any such student who was changed with a criminal offence was under the age of 18 years at the time, I am prohibited under the Youth Criminal Justice Act (“YCJA”) from ordering such disclosure. I am aware that an application already was made by the applicant to a Youth Court judge to obtain an order permitting disclosure of certain information and records governed by the YCJA. In my view, if it was the applicant’s intention to seek disclosure of other information or records governed by the YCJA, then such information or records should have been sought at that time.

17On the other hand, if any of the students for whom disciplinary records are required to be disclosed pursuant to my order were criminally charged as a result of the incident(s) for which they were disciplined and were 18 years of age or older at the time of the criminal charges, then the restrictions under the YCJA would not apply. Accordingly, I am prepared to order the respondent school board to disclose to the respondent police services board the names of any All Saints students who were 18 years of age or older at the time they were suspended or expelled for fighting and/or bullying, and the respondent police services board shall advise the other parties and this Tribunal whether any such students were criminally charged in relation to the incident for which they were disciplined. To be clear, the actual names of any such students are to be shared only as between the respondent school board and the respondent police services board. In advising the other parties and the Tribunal as to whether any of these students were criminally charged, the police services board shall redact the actual names and shall use the same identifier for such student(s) as is used by the respondent school board. The respondent school board shall disclose these names to the respondent police services board within 30 calendar days of the date of this Interim Decision, and the respondent police services board shall advise the other parties and the Tribunal as to whether any such student(s) were criminally charged in relation to the incident for which they were disciplined within a further 10 calendar days.

Proposed expert evidence

18The applicant proposes to call Dr. David Osher as an expert witness to testify at the hearing in support of her allegations. Dr. Osher currently is Vice-President of the Education, Human and Social Development Program at the American Institutes for Research, and has been involved in a significant number of studies related to students, learning and discipline. The applicant has provided a summary of Dr. Osher’s proposed evidence, including the impact and effectiveness of “zero tolerance” policies particularly relating to African American and Afro-Caribbean students and disparities in the imposition of discipline on such students. He also proposes to testify regarding the experience with such disciplinary policies in Canada.

19The respondents object to the relevance and admissibility of this proposed expert evidence, primarily on the basis that the proposed evidence is focused on the impact of “zero tolerance” policies, while (as noted above) the disciplinary regime under which the applicant was suspended has moved away from reliance on “zero tolerance” policies and mandatory measures to a requirement to exercise discretion in accordance with the regulations. In reply, the applicant has noted that Dr. Osher’s summary speaks not just to mandatory disciplinary measures, but also to the exercise of discretion in imposing discipline.

20The respondents also object on the basis that a number of matters addressed in Dr. Osher’s summary and in the materials upon which he relies extend beyond the scope of the matters at issue in this proceeding, particularly in relation to the issue of whether the applicant’s rights under the Code were violated. For example, the effectiveness of “zero tolerance” discipline policies in relation to reduction in school crime and the long-term effectiveness of such policies, while important social issues, are not relevant to the issue of whether the applicant experienced racial discrimination in being suspended or criminally charged in April 2008. Nor is evidence regarding placement of racialized youth in special education and imposition of discipline on such youth relevant in the applicant’s circumstances.

21The applicant takes the position that it is not appropriate for me to assess the relevance or admissibility of Dr. Osher’s proposed evidence at this stage of the proceeding, and that I should only concern myself with assessing whether Dr. Osher’s proposed evidence would “logically contribute” to the applicant’s case and assist this Tribunal in deciding an issue in this proceeding. In my view, in appropriate circumstances, this Tribunal may be in a position to assess relevance and admissibility regarding proposed expert evidence prior to the proposed expert witness being called at the hearing, depending upon the extent of information filed with the Tribunal regarding the proposed expert evidence and the issues raised in the particular proceeding. That having been said, in my view, the result would not differ in this case whether I applied the more rigourous standard regarding relevance and admissibility or the more relaxed standard proposed by the applicant.

22Having reviewed and considered the material on this issue filed by the parties, I am prepared to allow Dr. Osher to testify in this proceeding. The issue of the alleged disproportionate imposition of discipline on racialized students has not, to my knowledge, yet been addressed in this Tribunal’s caselaw, and it is my view that Dr. Osher’s evidence may be helpful in addressing this issue.

23However, I want Dr. Osher’s evidence to be focused on the following two areas, which I regard as being arguably relevant to the issues raised in this proceeding:

a) Whether and, if so, to what extent, how and why the exercise of discretion by a school administrator to impose discipline on a student for fighting and/or bullying is disproportionately applied to African-Canadian, African-American and/or Afro-Caribbean students; and

b) Whether and, if so, to what extent, how and why the laying of criminal charges arising out of school incidents of fighting and/or bullying is disproportionately applied to African-Canadian, African-American and/or Afro-Caribbean students.

24While I am interested to hear Dr. Osher’s evidence on these points, I also will be interested to hear the extent to which any views or opinions he may express are supported in the literature upon which he relies. In addition, I will expect Dr. Osher to be familiar with the disciplinary regime under the Ontario Education Act which came into effect on July 1, 2007 and to focus his evidence on the exercise of discretion within the context of that regime.

Request for removal of personal respondents

25The principles relating to the removal of personal respondents are stated in Persaud v. Toronto District School Board, 2008 HRTO 31 as follows:

1. Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?

2. Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who sought to be removed?

3. Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?

4. Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?

5. Would any prejudice be caused to any party as a result of removing the personal respondent?

26In this case, the respondent school board also is alleged to be liable for the conduct of Mr. Fedak and Ms. Duane at issue in this proceeding, and the school board has accepted its deemed or vicarious liability for any conduct by the personal respondents.

27There also, in my view, is no real issue as to the school board’s ability to respond to or remedy the alleged Code infringement. The applicant takes the position that the school board cannot effectively remedy any Code infringement found as against the personal respondents, on the basis that she may ask for personal remedies against these two individuals. It is submitted that these orders could include orders requiring the personal respondents to participate in implementing programs to remedy discrimination or in anti-racism training. In my view, as employees of the respondent school board, these two individuals could be required to participate in such programs or training by the school board without the necessity of them being named as personal respondents.

28The applicant also raises the issue that she has requested an apology from these two individuals. However, as I stated in Ogunyankin v. Queen’s University, 2010 HRTO 2035 at para. 7, the mere fact that an applicant has requested an apology from a personal respondent is not, in and of itself, a sufficient basis to justify continuing the proceeding against that individual as a party without consideration of all of the factors outlined in the Persaud decision.

29As with most cases involving a request for removal of personal respondents, the question comes down to whether there is any compelling reason to continue the proceeding as against Mr. Fedak or Ms. Duane. This depends, of course, upon a review of what specific allegations are made in the Application as against these two individuals and whether the nature of those allegations provide a compelling reason to continue the proceeding as against them personally.

30Ms. Duane was a Vice-principal at All Saints at the relevant time. In the complaint as filed with the Commission, the applicant alleges that following the incident in question, she was called down to the office by Ms. Duane and “accused several times of hitting another student in the face”, which the applicant says she denied. The applicant alleges that Ms. Duane said that it was “all on tape” and accused the applicant of lying. The applicant alleges that Ms. Duane assumed that she was guilty and refused to believe her because of racial stereotypes about African Canadians being criminal, violent and gang members. In her Statement of Additional Facts, the applicant references a prior incident in which she alleges that Ms. Duane accused her of wearing “gang colours” as a result of some coloured shoelaces she was wearing and accused her of being involved in a gang.

31In my view, this is not a sufficient basis upon which to justify the continuation of this proceeding as against Ms. Duane as a personal respondent. Ms. Duane was acting in the exercise of her duties as Vice-Principal in investigating an incident that had been reported to her and the police liaison officer at the school, Constable Foote. While her actions will be at issue in this proceeding, and particularly I will need to consider whether consciously or unconsciously and/or as a result of racial stereotypes the applicant’s race was a factor in the discipline imposed on the applicant, this does not in my view necessitate or justify Ms. Duane continuing as a personal respondent.

32Mr. Fedak was the Principal at All Saints at the relevant time. In the complaint, the applicant alleges that Mr. Fedak never spoke to her to get her side of the story before she was suspended. However, it is clear from the applicant’s own complaint that she was spoken to by the Vice-Principal, Ms. Duane. The applicant also alleges that Mr. Fedak did not investigate the incident properly, which reinforced and condoned the actions of Ms. Duane.

33Mr. Fedak’s involvement in this matter comes as a result of his position as Principal. It does not appear that he was directly involved in the investigation of the incident leading to the applicant’s suspension. In my view, where an individual’s involvement is limited to acting pursuant to their position or role in an organization, that is not a sufficient basis upon which to justify continuing the proceeding as against that individual as a personal respondent.

34Applicant’s counsel submits that the removal of personal respondents does not serve the purposes of the Code, as it allows individuals to hide behind the shield of corporate respondents. He submits that individuals are more likely to be encouraged to respect and promote the Code if they face the risk of having their names included as personal respondents to an unfavourable Tribunal decision. With respect, I disagree. The aim of the Code is remedial, not punitive. In my view, this Tribunal exercises appropriate discretion in accordance with the Code’s remedial purpose in removing personal respondents where an organization takes responsibility for their actions, can remedy the harm, and there is no compelling reason to continue against an individual as a personal respondent, even though their actions alone or together with others may form the basis of a finding of a Code violation. In my view, the notion that this Tribunal should allow proceedings to continue against named personal respondents merely for the potential purpose of shaming them by potentially having their names attached to an unfavourable Tribunal decision is punitive, unnecessary and contrary to Code principles.

35The request to remove Ms. Duane and Mr. Fedak as personal respondents is allowed and the title of proceeding has been amended accordingly.

Paragraphs 9 to 11 of applicant’s Statement of Additional Facts

36In my last Interim Decision in this matter dated August 2, 2011 (2011 HRTO 1448), I requested submissions from the parties as to whether the allegations set out in paragraphs 9 to 11 of the applicant’s Statement of Additional Facts fell within the scope of the subject-matter of her complaint against the respondent school board.

37In brief, these paragraphs allege that the respondent school board failed to facilitate the applicant’s prompt return to school or to promptly arrange for homework to be sent to her.

38The applicant cites Tribunal caselaw in support of her submission that the subject-matter of the complaint ought to be interpreted liberally and broadly, citing a number of Tribunal decisions dealing with complaints referred to this Tribunal by the Commission under the former human rights system: Toneguzzo v. Kimberly-Clark Inc., [2005] O.H.R.T.D. No. 45; Jeffrey v. Dofasco Inc., [2000] O.H.R.B.I.D. No. 11; Persaud v. Toronto District School Board, 2008 HRTO 12. The applicant submits that these same principles should apply to applications filed with this Tribunal pursuant to s. 53 of the Code under the new human rights system.

39With respect, this submission ignores the considerable caselaw that has developed at this Tribunal specifically in reference to the statutory language of s. 53 of the Code and the limitation of this Tribunal’s jurisdiction under that section to the “subject-matter” of the complaint as filed with the Commission: see for example DeFreitas v. Ontario Public Services Employees Union, 2010 HRTO 281. This submission also fails to take into account the significant differences between the old human rights system and the new one. Under the old system, referral of a complaint to this Tribunal by the Commission would be preceded by an investigation by Commission staff and an investigation report. It was not uncommon for the allegations as set out in the complaint to have evolved or expanded through the investigation process, such that a more expansive approach to the scope of the proceeding was appropriate. In contrast, under the new system, where an application is filed directly with the Tribunal under s. 53, no such investigation process has been concluded by the Commission. In these cases, the only information a respondent has regarding the allegations raised by the applicant generally comes from the complaint document itself.

40The purpose of allowing an applicant the opportunity to file a Statement of Additional Facts in relation to a s. 53 (or transitional) application is to afford the applicant the opportunity to identify additional material facts in support of the allegations raised in the complaint. This recognizes that, particularly where an applicant has drafted her own complaint and where the Commission had imposed page limits on the size of complaints, not all material facts may have been set out in the complaint itself. Nonetheless, there must at least be some allegation in the complaint which is capable of serving as an anchor for the additional facts submitted.

41In this case, the complaint is clearly about the applicant’s suspension and the criminal charge. No allegation is raised in the complaint regarding any failure to facilitate the applicant’s prompt return to school or to promptly arrange for homework to be sent to her, notwithstanding that the complaint was filed on June 27, 2008 at the end of the school year. The applicant relies upon her statement in the complaint that “this whole incident has affected my school work, has caused me to be depressed and angry, and I have trouble sleeping”. In my view, this sentence is clearly directed towards outlining the impact of the alleged discrimination on the applicant, as opposed to raising a new and separate allegation that the respondent racially discriminated against her by failing to do enough to get her back to school or to send her homework.

42As a result, I find that paragraphs 9 to 11 of the applicant’s Statement of Additional Facts raise new allegations that are beyond the scope of the subject-matter of her complaint. Accordingly, these allegations will not be considered in this proceeding.

Case management

Bifurcation

43As all parties have consented to bifurcation, I confirm that the hearing is now bifurcated so that at the initial stage of the hearing, the Tribunal will deal only with the issue of whether the applicant’s rights under the Code have been violated and not with any issue regarding remedy if a violation were to be found. At a separate and later stage, and only if the Tribunal first finds a violation of the Code, the Tribunal will establish a process to deal with any issue regarding remedy.

Applicant’s documents

44In her letter dated September 28, 2011, counsel for the respondent school board states that the applicant has not produced the documents listed at Tabs 20 to 29 in the applicant’s list of documents to be relied upon at the hearing. These materials have been filed with the Tribunal and appear to be materials produced to the applicant pursuant to the Order of Justice Bellefontaine dated July 5, 2011 and the order I made in my last Interim Decision. There should be no issue regarding the disclosure of these documents to the respondent school board, as both Justice Bellefontaine’s order and my order expressly contemplated such disclosure and granted permission to the applicant to disclose these documents to all respondents to this proceeding, including the respondent school board (see Justice Bellefontaine’s order, para.3 and my order, para. 27(i)). Accordingly, if the applicant has not already done so, she is directed forthwith to provide these documents to the respondent school board.

45In the aforementioned letter, the respondent school board also objects to inclusion in the applicant’s Book of Documents of an application filed by another individual against the school board arising out of the same incident, which was dismissed by this Tribunal (S.M. v. Durham Catholic District School Board, 2010 HRTO 636). I agree that this document is not properly included in the applicant’s Book of Documents, and so will strike this document. I understand that I may hear evidence from this individual whom the applicant intends to call as a witness, and the striking of her application is not in any way intended to pre-judge or prejudice whatever evidence she may have to provide to this Tribunal that is relevant to the applicant’s allegations.

Witnesses

46I have had the opportunity to review the witness statements filed by the parties. Having done so, I am now of the view that we will require a third hearing day in order to complete this matter. Accordingly, the Tribunal will be contacting the parties to propose dates for a third hearing day.

47In order to ensure that this hearing is completed in a timely manner, I am proposing the following timetable for examination and cross-examination of the witnesses proposed to be called by the parties. In setting time estimates for examination and cross-examination, I note that these are estimates only and are not intended to limit or cut off relevant evidence. If counsel gets to the end of the allotted time, then I would hear from counsel what further areas of evidence they believe they need to cover to complete the examination or cross-examination and I would rule on what further evidence I need to hear.

48In setting these time estimates, it is my intent that the time allocated for cross-examination of the applicant’s witnesses represents the time for cross-examination by both respondent counsel, which can be divided between them as they choose. With regard to cross-examination of respondent witnesses, the time allocated is the time for applicant’s counsel to cross-examine. It is my expectation that counsel for the respondent on whose behalf the witness is not being called will have little to ask by way of cross-examination.

49With regard to the applicant’s witnesses, I note that the last paragraphs of the proposed statements of the applicant and her mother speak to the impact on her, which is a matter going to remedy and does not form part of the evidence I need to hear at this stage of the proceeding. With regard to witnesses S.M. and K.M., the last paragraph of their statements refers to the impact of the events on S.M., which is not relevant to this proceeding. With regard to witness K.M., I note that the statements alleged to have been made to her by P.F. are hearsay and I will not hear this evidence on a material or disputed issue. This is particularly so since witness C.H. will testify that she was present for P.F.’s interview by Constable Foote and can testify directly as to whether or not she observed P.F. being pressured.

50I also cannot help but notice that P.F. is not being called as a witness in this proceeding. I am aware that affidavits from P.F. and her mother are in the material filed with the Tribunal as part of the exhibits before the Suspension Appeals Committee. However, I will not rely on these affidavits as the evidence of P.F. in this proceeding in the absence of P.F. being called to testify as a witness so that she can be cross-examined.

51With regard to the respondent witnesses, I propose that they affirm the truth of their witness statements at the commencement of their evidence and that supplementary examination be conducted only to address matters raised by the applicant’s witnesses not already addressed in the statements and to provide oral evidence on matters where I will need to assess credibility. As a result, the time I have allotted for examination of the respondent witnesses is lower than if I were to receive all of their evidence orally. Having reviewed the statements, I do not believe that I need to hear from Ms. O’Brien, as her evidence is largely repetitive of evidence I will be hearing from other respondent witnesses.

52I also note that some of the respondents’ witness statements include hearsay evidence. Most notably, paragraph 34 of Ms. Duane’s statement refers to a student who testified before the Suspension Appeals Committee and the reason why she gave the evidence she did before that committee. As previously indicated, I will not rely on hearsay evidence in this proceeding on a material or disputed issue.

53The time estimates proposed for the witnesses are as follows.

Witness	Examination	Cross-Examination
B.C.	30 mins	1 hr
G.S.C.	20 mins	40 mins
S.M.	20 mins	40 mins
K.M.	10 mins	15 mins
C.H.	20 mins	40 mins
T.G.	15 mins	30 mins
Dr. Osher	1 hr	2 hrs
Andy Fedak	15 mins	1 hr
Susan Duane	30 mins	1.5 hrs
Joe D’Amico	10 mins	30 mins
Sara Foote	30 mins	1.5 hrs

54If any party has any objection to the above time estimates or manner of proceeding with the witness evidence, they shall serve and file any written submissions within 14 calendar days of the date of this Interim Decision.

ORDER

55For all of the foregoing reasons, I hereby make the following order:

a) Within 30 calendar days of the date of this Interim Decision, the respondent school board shall disclose to the other parties and file with the Tribunal:

1. a list of all students at All Saints who were disciplined for fighting and/or bullying during the 2007/08 school year showing the date and nature of the discipline imposed;

2. for each such student, the letter providing notice of discipline and any Principal’s Report or other material setting out the context in which the discipline was imposed; and

3. a colour copy of each student’s photo, whether from a photo ID card or from the school yearbook.

The names of the disciplined students (and of any other students whose names may be mentioned in this material) are to be redacted and replaced either with the student’s initials or a non-identifying title such as “Student A”.

b) If there are any issues or concerns by the respondent school board regarding its compliance with this order, such issues or concerns are to be raised with this Tribunal within 10 calendar days of the date of this Interim Decision and appropriate direction shall be provided.

c) Within 30 calendar days of the date of this Interim Decision, the respondent school board shall disclose to the respondent police services board the names of any All Saints students who were 18 years of age or older at the time they were suspended or expelled for fighting and/or bullying. Within a further 10 calendar days, the respondent police services board shall advise the other parties and this Tribunal whether any such students were criminally charged in relation to the incident for which they were disciplined. In advising the other parties and the Tribunal as to whether any of these students were criminally charged, the police services board shall redact the actual names and shall use the same identifier for such student(s) as is used by the respondent school board.

d) Dr. Osher is allowed to testify as an expert witness in relation to the issues set out at paragraph 23 of this Interim Decision;

e) The request to remove Ms. Duane and Mr. Fedak as personal respondents is allowed and the title of proceeding has been amended accordingly;

f) Paragraphs 9 to 11 of the applicant’s Statement of Additional Facts raise new allegations that are beyond the scope of the subject-matter of her complaint, and accordingly will not be considered in this proceeding;

g) The hearing in this matter is bifurcated so that at the initial stage of the hearing, the Tribunal will deal only with the issue of whether the applicant’s rights under the Code have been violated and not with any issue regarding remedy if a violation were to be found;

h) If the applicant has not already done so, she is directed forthwith to provide to the respondent school board the documents listed at Tabs 20 to 29 in the applicant’s list of documents to be relied upon at the hearing;

i) The document included at Tab 2 of the applicant’s Book of Documents is struck;

j) If any party has any objection to the proposed time estimates or manner of proceeding with the witness evidence, they shall serve and file any written submissions within 14 calendar days of the date of this Interim Decision.