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# HUMAN RIGHTS TRIBUNAL OF ONTARIO
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**B E T W E E N:**
Larisa Ilchenko
Applicant
-and-
Algonquin Careers Academy
Respondent
______________________________________________________________________
**INTERIM DECISION**
______________________________________________________________________
**Adjudicator:** Michelle Flaherty
**Date:** November 22, 2011
**Citation:** 2011 HRTO 2111
**Indexed as:** Ilchenko v. Algonquin Careers Academy
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# [1] The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) alleging discrimination on the basis of ethnic origin and disability in the provision of goods, services or facilities. In essence, the Application relates to the applicant’s expulsion from the respondent’s paralegal program. She alleges that the respondent failed to accommodate her disability and that it treated her differently from other students on the basis of her ethnic origin.
# [2] The respondent denies the allegations of discrimination. It states that the applicant was expelled because of poor academic performance, for handing in work that was not her own, and because she could not meet the requirements of a probationary period. The respondent denies that the applicant identified any physical disability or need for accommodation until March 2009. It states that it then provided appropriate accommodation; including giving the applicant an opportunity to rewrite assignments on which she has performed poorly.
# [3] This matter is scheduled for hearing on January 23 and 24, 2012. The parties have already exchanged arguably relevant documents. By December 9, 2011, they are required to exchange and file the documents upon which they intend to rely at the hearing.
# [4] In November 2010, the applicant filed a Request for an Order During Proceedings (“Request”) in which she seeks production of the documents contained in her academic file.
# [5] In November 2010, the respondent filed a Response to the Request. It stated that it had already provided most of the contents of her academic file and it is unclear what further production is being requested.
# [6] As I have indicated, the parties have now exchanged arguably relevant documents. The respondent has provided a copy of those arguably relevant documents to the Tribunal. The respondent lists these as follows:
Assessment for Admission dated September 2, 2008
Enrollment contract dated October 9, 2008
Signed acknowledgment of receipt of student handbook dated October 9, 2008
Memo dated November 21, 2008, to student.
Student activity forms dated February 24, 2009, June 24, 2009 and July 6, 2009.
Student review April 29, 2009
Copies of email correspondence between the Applicant and various members of Algonquin Careers Academy staff from approximately October 2008, and continuing to March of 2011.
Legal Writing assignment of the Applicant, received originally March 6, 2009.
Legal writing Assignment of another student, dated January 23, 2009.
Memo dated April 21, 2009 from Carrie-Lynn Barkley to Rodney D’Souza outlining a plan to accommodate the request of the Applicant’s doctor.
Review questions provided to the Applicant to assist her in preparing for rewrites.
Letter dated June 18, 2009, placing the Applicant on academic probation.
“Commitment to Graduate” letter dated July 13, 2009 confirming terms of June 18 probation letter and summarizing requirements to graduate.
Paper submitted by the Applicant as her work on July 20, 2009.
Copies of material taken from the Internet on or about July 20, 2009, demonstrating the paper noted at #12 was plagiarized.
Letter dated July 23, 2009, dis-enrolling the Applicant from the school for failing to meet requirements of academic probation.
# [7] In its Response to the Request, the respondent states that it has also provided the applicant with a copy of all of her marked assignments, all of the personal information it has collected regarding the applicant, her transcripts, a course calendar, and copies of all letters concerning her expulsion.
# [8] The respondent states that it has not provided copies of her marked exams to the applicant because of its concerns and policies regarding the distribution of test materials.
# [9] The respondent states that, while the applicant has requested disclosure of her academic file, she has not indicated what further documents she believes should be disclosed.
# [10] The purpose of this Interim Decision is to address the applicant’s outstanding Request for production.
# DECISION
# [11] Based on the Application and the Response, the applicant’s academic record with the respondent is arguably relevant to the proceedings before the Tribunal. The Response, in particular, raises issues regarding the applicant’s academic performance and her alleged inability to meet certain academic criteria.
# [12] It appears from the respondent’s submissions that it has disclosed a number of arguably relevant documents to the applicant. One exception is the applicant’s marked examinations.
# [13] As the applicant’s academic performance is at issue in this proceeding, her examination materials are arguably relevant to this proceeding. Accordingly, the respondent must disclose the applicant’s examination materials to her.
# [14] Importantly, these documents are subject to Rule 3.3 of the Tribunal’s Rules of Procedure, which essentially, articulates the implied undertaking rule. This rule stipulates that information obtained in the course of a proceeding cannot be used by the parties for any purpose other than in the proceedings before the Tribunal.
# [15] The Supreme Court of Canada explained the rationale for the underlying implied undertaking rule in [Juman v. Doucette, 2008 SCC 8](https://www.minicounsel.ca/scc/2008/8), 2008 SCC 8 at para. [25](https://www.minicounsel.ca/scc/2008/8). Among other things, it held that the public interest in getting at the truth in a proceeding often requires the invasion of a litigant or third party’s privacy interests. Those privacy interests are, nevertheless, entitled to a measure of protection; the invasion of privacy should generally be limited to the level of disclosure necessary to satisfy the purpose of the legal proceeding and that purpose alone.
# [16] Thus, Rule 3.3 and the implied undertaking rule mean that the applicant may not use the examination materials for any purpose outside of the proceedings before the Tribunal. Although she may refer to the materials in her evidence and in her submissions before the Tribunal, she may not disclose them or their contents outside this context. She may not disclose the examination materials or its contents to third parties, including but not limited to other students or prospective students of the respondent.
# SUMMARY
# [17] Within four days of the date of this Case Assessment Direction, the respondent must disclose the applicant’s marked examination materials to her.
# [18] These examination materials are subject to Rule 3.3. The applicant may not disclose the examination materials or their contents for any purpose outside of the proceedings before the Tribunal.
Dated at Toronto, this 22nd day of November, 2011.
“signed by”
____________________________________
Michelle Flaherty
minicounsel