G.A. v. York Region District School Board, 2011 HRTO 2110

Human Rights Tribunal of Ontario

B E T W E E N:

G.A. by his next friend O.A.

Applicant

-and-

York Region District School Board

Respondent

INTERIM DECISION

Adjudicator: Jay Sengupta

Date: November 22, 2011

Citation: 2011 HRTO 2110

Indexed as: G.A. v. York Region District School Board

APPEARANCES

G.A by his next friend O.A., Applicant ) Self Represented

York Region District School Board, )

Respondent ) Brenda Bowlby, Counsel

1This is an Application filed by the applicant’s next friend under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination in receipt of services on the basis of disability.

2A three day hearing had originally been scheduled for November 7, 8 and 9, 2011. The Tribunal converted the first scheduled date into a preliminary hearing to address a number of preliminary matters and outstanding Requests for Order filed in advance of the hearing.

3At the outset of the preliminary hearing, the Tribunal outlined that the four following issues would be addressed:

(a) The respondent’s Request for Order seeking disclosure and production of the applicant’s medical records during the material time and seeking consent to access and use the file compiled and maintained by the Board psychologist;

(b) The applicant’s Request for Order seeking exclusion of the response and a number of documents filed by the respondent because of alleged use of the applicant’s Ontario Student Record (the “OSR”) without prior consent;

(c) The positions of the parties with respect to a second Application filed by the applicant last week alleging reprisal by the respondent school board; and

(d) The outstanding Request for Order filed by the Applicant seeking a publication ban.

REQUEST FOR ORDER SEEKING DISCLOSURE AND PRODUCTION

4It is well-established that the basic principle in determining a production request is whether the requested documents are “arguably relevant” to the issues in dispute in the proceeding.

5In paragraphs 12 and 13 of McKay v. Toronto Police Services Board, 2009 HRTO 1220, the Tribunal held as follows:

The threshold test for disclosure at the pre-hearing stage of a human rights proceeding is “arguable relevance”, which requires that there be some relevance between the sought-after material(s) and the subject matter of the complaint. The party seeking production must demonstrate a nexus between the information or document sought and the facts or issues in dispute before the Tribunal: Neusch v. Ontario (Ministry of Transportation), 2002 CanLII 46508.

The first step in determining what is relevant is the identification of the cause of action’s facts and the surrounding substantive law: Neusch, supra. A nexus may be established if the sought-after information goes to prove or disprove a fact or issue in dispute or provides an inferential link to support a theory of the case or line of defence. If the materials sought meet this threshold standard of “arguable relevance”, the Tribunal must next consider whether there any other issues or concerns, such as privilege or privacy, which may require a determination of terms and conditions upon which production may be ordered. Further, a finding that a document is arguably relevant for production does not mean that such information will necessarily be admissible as evidence at the hearing on the merits.

6As noted in Nassiah v. Peel Regional Police Services Board, 2006 HRTO 18 at paragraph 8, this is a relatively low threshold for the requesting party to meet. However, as the Tribunal stated in Lampi v. Princess House Products Canada Inc., 2008 HRTO 1 at paragraph 10:

Documents which are arguably relevant may nevertheless not be ordered disclosed if they are privileged, the probative value is outweighed by potential prejudice to the party producing them, or if the timing of the request risks derailing a just and expeditious hearing.

7The Tribunal in Lampi (supra) also went on to point out that:

The Tribunal is also sensitive to privacy issues, particularly in relation to the production of medical records. Even where such records are arguably relevant, compelling privacy interests can be protected through such techniques as limiting the documents ordered to be produced, restricting the individuals who may view the documents, or ordering production to the Tribunal for inspection or redaction before disclosure: see, for instance, McEwan v. Commercial Bakeries Corporation, 2004 HRTO 13, 2004 HRTO 13. The Tribunal may also order production without screening. It is, of course, understood that parties may not use material disclosed to them through the Tribunal’s processes for purposes other than its proceedings.

8The applicant argues that the medical information already disclosed cover the issues at hand. She also points to a psycho-educational assessment that postdates the filing of this Application and argues that it addresses the needs of the parties and the Tribunal with respect to the relevant medical issues because it contains a historical overview of all relevant medical conditions. As indicated in previous Tribunal decisions, one party to a proceeding cannot normally produce only those portions of a document they deem to be relevant. Arguably relevant documentation should be produced in its entirety unless there are exceptional circumstances, such as claims of privilege which preclude disclosure in the normal course.

9Having considered the issue and the arguments made by the parties on this question, I find no exceptional circumstances in this case that would preclude such disclosure. The restrictions and needs arising out of the applicant’s numerous medical conditions are central to the allegations at the heart of this Application. In addition, given the number of medical conditions referenced in the applicant’s own materials, there is no meaningful way in which the scope of the disclosure can be limited except by reference to the years that fall within the scope of the Application, as defined in the Application.

10I find, therefore, that all medical documentation from the applicant’s treating physicians and specialists relating to the applicant’s disabling conditions which are the subject of this Application and that relate to the material time, defined in the Application as 2002 through to 2009, fall within the meaning of what is arguably relevant to the factual and legal issues raised by the Application. I order production of all those records immediately, and in any event, no later than December 16, 2011.

11I have heard and understand the applicant’s concerns that the medical records contain private and highly sensitive material. The parties are, of course, reminded of their obligation to treat sensitive medical information with the utmost care and to be mindful of their responsibility to ensure that the material that is produced is not used for any purpose other than this proceeding.

12In addition, counsel for the respondent has indicated that a limited number of people would have access to the materials. She indicates that number would include the members of her firm working on this matter, the employees of the respondent school board who are instructing counsel in this matter and those who are to appear as witnesses in these proceedings. She indicates that the employees of the respondent school board would not be provided with copies of the materials but would, instead, be shown the material by counsel. I am satisfied that these measures address the legitimate concerns expressed by the applicant’s next friend.

13The respondent has requested that the Tribunal order that the applicant consent to the release and use of information contained in the file concerning the applicant, created and maintained by Dr. Boyko, a psychologist employed by the respondent.

14Dr. Boyko is the head of the respondent school board’s Regional Behavioural Team, which is described as a team of psychologists and social workers whose job is to assist students. They do this, in part, by collecting information, creating behavioural logs and assessments as well as receiving and maintaining reports that parents provide to assist their children in the process. The file is maintained outside of the student’s OSR. The respondent indicates that this team has played a critical role in working with the applicant’s teachers and school administrators and the evidence of the team and the documents held by the team are crucial to their response to the allegations of discrimination.

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.” (See also T.S. v. Toronto District School Board, 2011 HRTO 1471 and Parr et al. v. Butkovich et al (1978), 1978 CanLII 1318 (ON HCJ), 20 O.R. (2d) 491).

16While the file may be in the possession of the respondent, it is clear that the applicant’s next friend has power and control over the file in this context. The respondent argues, and I accept, that it would constitute an abuse of process for the applicant’s next friend to withhold consent to use these documents while still seeking to proceed to have her allegations of discrimination heard by this Tribunal.

17Section 23 of the Statutory Powers Procedures Act, R.S.O. 1990, c. S.22, (the “SPPA”) reads as follows:

A tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.

18The applicant’s next friend is directed to state in writing whether she gives consent to the respondent to use and disclose documents and information from the file concerning the applicant, created and maintained by Dr. Boyko, a psychologist employed by the respondent for the purpose of this proceeding. If she does not give her consent within two weeks of the date of this Interim Decision, the Application will be dismissed as an abuse of process.

REQUEST FOR ORDER SEEKING TO EXCLUDE RESPONSE AND DOCUMENTS FILED BY RESPONDENT

19The applicant takes issue with portions of the Response filed by the respondent and with a number of documents filed by the respondent. She argues that the respondent has breached s. 266 of the Education Act by using the information and documents contained in the OSR without first obtaining the consent of the applicant’s parents.

20That section reads as follows:

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.

21The applicant suggests that the appropriate solution to this alleged breach is for the Tribunal to refuse to consider the material accessed and used thus far in the proceedings by the respondent.

22The respondent has presented three arguments in response.

23The respondent’s primary position is that by filing the Application, the applicant has implicitly waived his rights under s. 266 of the Education Act. It states that the legislature could not have intended that an applicant could initiate litigation of this nature and make allegations concerning matters included in the OSR to which the respondent could not properly respond.

24In the alternative, the respondent submits that the Tribunal has the authority to order disclosure and use of the information in the OSR. In this regard, the respondent has referred me to a number of decisions of arbitrators and judicial authority.

25In the further alternative, the respondent submits that if the Tribunal is of the view that consent is necessary, the approach followed in T.S. v. Toronto District School Board should be followed and that if consent is not provided, the Application ought to be dismissed as an abuse of process for the reasons outlined in paragraph 15 (above).

26Like my colleague in T.S. v. Toronto District School Board (supra), I take the view that it is not necessary for me to rule on the primary and secondary arguments presented by the respondent to resolve the issue currently before me.

27I note that, in the Application, the applicant refers to information and material in the OSR. It is apparent from this, and from the issues raised in the Application, that information and documents in the OSR will be material to the case presented by the applicant and the defense presented by the respondent. It would be manifestly unfair for the applicant to be able to rely on this material, but not the respondent.

28When asked during the course of the preliminary hearing, the applicant’s next friend conceded that in the normal course all parties should have access to relevant materials in the OSR. She distinguishes the circumstances in this particular case by pointing to the fact that, in her view, the respondent is seeking consent after the fact and should not be permitted to do so.

29The issue before me in exercising the Tribunal’s mandate is how, if the applicant’s request is granted, the issues raised by him could be adjudicated in a fair, just and expeditious manner. It is apparent that they could not.

30What the applicant seeks is for the Tribunal to continue to deal with his Application with only one side of the dispute being fully heard and the other being barred from relying on relevant information and documents. It would amount to a breach of natural justice and would run counter to rules of procedural fairness to proceed in this manner.

31Section 23 of the Statutory Powers Procedures Act, R.S.O. 1990, c. S.22, (the “SPPA”) reads as follows:

A tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.

32The applicant’s next friend is directed to state in writing whether she gives consent to the respondent to use and disclose documents and information from the OSR of the applicant for the time period covered by 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, the Application will be dismissed as an abuse of process.

APPLICANT’S REQUEST FOR ORDER SEEKING A PUBLICATION BAN

33The applicant’s Request for an Order seeking a publication ban predated the change in the Tribunal’s Rules. The respondent did not take a position on the applicant’s request in its Form 11.

34Upon canvassing the changes brought about by the changes in the Tribunal’s Rules of Procedure with respect to the italicization of names of minors in such cases, the applicant withdrew her Request for Order.

SUBSEQUENT APPLICATION FILED BY THE APPLICANT

35The Application filed by the applicant the week before the preliminary hearing will not be consolidated with this Application. Further direction on the processing of that Application will be provided by way of a separate Case Assessment Direction.

ORDER

36All medical documentation from the applicant’s treating physicians and specialists relating to the applicant’s disabling conditions which are the subject of this Application and that relate to the material time, defined in the Application as 2002 through to 2009, will be produced immediately, and in any event, no later than December 16, 2011.

37Within 2 weeks of the date of this Interim Decision, the applicant’s next friend is directed to state, in writing to the respondent with a copy to the Tribunal, whether she gives consent to the respondent to use and disclose documents and information from the file concerning the applicant, created and maintained by Dr. Boyko, a psychologist employed by the respondent for the purpose of this proceeding.

38Within 2 weeks of the date of this Interim Decision, the applicant’s next friend is directed to state, in writing to the respondent with a copy to the Tribunal, whether she gives consent to the respondent to use and disclose documents and information from the OSR of the applicant for the time period covered by the Application for the purpose of this proceeding.

39If the respondent receives the consent outlined in paragraphs 35 and 36 (above), and following receipt of the documentary disclosure of medical information, the respondent may add to the documents to be relied upon at the hearing already filed as well as add or amend its witness lists. The additional materials and witness statements must be served and filed by January 20, 2012.