G.A. v. York Region District School Board, 2012 HRTO 1787

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

DECISION

Adjudicator: Sheri D. Price Date: September 19, 2012 Citation: 2012 HRTO 1787 Indexed as: G.A. v. York Region District School Board

APPEARANCES

G.A. by his Next Friend O.A., Applicant

O.A., Next Friend

York Region District School Board, Respondent

Brenda Bowlby, Counsel

Introduction

1This is an Application under s. 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging that the respondent school board reprised against the applicant and discriminated against him because of his age and disability when it accessed and used information in the applicant’s Ontario Student Record in the course of responding to another human rights Application filed against it by the applicant.

2A summary hearing was held on May 10, 2012, to determine whether the Application ought to be dismissed pursuant to Rule 19A of the Tribunal’s Rules of Procedure as having no reasonable prospect of success. During the summary hearing, the applicant’s next friend was given an opportunity to explain how she could establish that the respondent infringed the applicant’s rights under the Code if the Application were to proceed.

3For the reasons that follow, I find that the Application has no reasonable prospect of success. The Application is dismissed accordingly.

BACKGROUND

4In 2009, the applicant’s next friend filed an Application against the respondent in Tribunal file 2009-02847-I alleging that the respondent had discriminated against the applicant, a student within the respondent school board, with respect to educational services because of his disability.

5There is no dispute that, in its Response to that Application, the respondent school board referred to and relied upon information contained in the applicant’s Ontario Student Record (“O.S.R.”) without obtaining the consent of the applicant’s parents. The respondent takes the position that it was entitled to do this as part of its inherent right to defend itself against the applicant’s allegations.

6The applicant’s next friend disagrees. She contends that, by disclosing information from the applicant’s O.S.R. during the course of the proceeding in Tribunal file 2009-02847-I, the respondent contravened s. 266 of the Education Act, R.S.O. 1990, c. E.2, which provides that the Ontario Student Record is privileged and “is not admissible in evidence for any purpose in any … 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 [minor] pupil...”

7Consistent with that view, the applicant’s next friend took the position that the Tribunal ought to refuse to consider any of the information that the respondent had obtained from the applicant’s O.S.R. in deciding the Application in Tribunal file 2009-02847-I: G.A. v. York Region District School Board, 2011 HRTO 2110, at paras. 19-21. In addition, on October 12, 2011, the applicant’s next friend filed this Application, alleging that the respondent’s access and use of information in the applicant’s O.S.R. constituted a reprisal and was discriminatory.

8In a November 22, 2011 Interim Decision, 2011 HRTO 2110, the Tribunal denied the applicant’s request that the Tribunal prohibit the respondent from relying on information and documents in the applicant’s O.S.R. in responding to the Application in Tribunal file 2009-02847-I. On the contrary, the Tribunal found that the information and documents in the applicant’s O.S.R. were relevant to the issues to be determined and that it would be “manifestly unfair” for the applicant to be able to rely on this material, but not the respondent.

What 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. (at para. 30)

9Ultimately, the Tribunal directed the applicant’s next friend to provide her consent to the respondent using and disclosing documents and information from the applicant’s O.S.R. for the time period covered by the Application, for the purpose of the proceeding in Tribunal file 2009-02847-I, failing which, the Application would be dismissed as an abuse of process: 2011 HRTO 2110, at para. 32.

10On November 27, 2011, the applicant withdrew the Application in Tribunal file 2009-02847-I.

11As for the instant Application, by Case Assessment Direction dated December 1, 2011, the Tribunal directed, on its own initiative, that a summary hearing be convened pursuant to Rule 19A of the Tribunal’s Rules of Procedure to determine whether the Application should be dismissed on the basis that it has no reasonable prospect of success.

ANALYSIS AND DECISION

12During the summary hearing, the applicant’s next friend argued that the respondent infringed the applicant’s rights under the Education Act and various pieces of privacy legislation when it accessed and used information contained in the applicant’s O.S.R. in the course of responding to the Application in Tribunal file 2009-02847-I. However, as I explained to the applicant during the summary hearing, the Tribunal has no jurisdiction to determine whether the respondent violated the applicant’s rights under other statutes. The Tribunal’s jurisdiction is limited to determining whether the applicant’s rights under the Code were infringed by the respondent in the manner alleged in the Application.

13The applicant’s next friend alleges that the respondent reprised against the applicant contrary to s. 8 of the Code when it disclosed privileged information from the applicant’s O.S.R. in the course of the proceeding in Tribunal file 2009-02847-I. In particular, the applicant submits that the respondent reprised against the applicant by improperly disclosing privileged information and documents from the applicant’s O.S.R. in its Response to the Application and when it sent documents from the applicant’s O.S.R. to the applicant’s next friend pursuant to Rule 16.1 of the Tribunal’s Rules of Procedure in or around June 2011.

14The applicant also alleges that the respondent’s actions constituted discrimination against the applicant because of his age (i.e. as a minor child) and disability.

15In my view, the Application has no reasonable prospect of success. It is dismissed accordingly.

Absolute Privilege

16First of all, I agree with the respondent that the common law doctrine of absolute privilege prevents the applicant from pursuing the Application.

17Absolute privilege is a common law doctrine, the purpose of which is to ensure that judges, advocates, litigants and witnesses are free to fulfill their roles in the justice system without the threat of lawsuits based on their doing so.

18It is well-established that statements made during the course of judicial or quasi-judicial proceedings and in legal pleadings are made on an occasion of absolute privilege and may not be used as the basis for civil proceedings, including Applications under the Code. Dingwall v. Lax, (1988), 1988 CanLII 4716 (ON HCJ), 63 O.R. (2d) 336; 1522491 Ontario Inc. v. Stewart, Esten Professional Corp., 2010 ONSC 727 (“Stewart”), at para. 33-46; Ornelas v. Casamici Restaurant, 2010 HRTO 1078, (reconsidered 2011 HRTO 1531).

19In Ontario, absolute privilege also applies to preparatory steps taken towards litigation: Dingwall, supra, at para. 16; Stewart, supra, at para. 39.

20The entire Application in this case is based on statements made in the respondent’s pleadings and the pre-hearing disclosure of documents to the applicant by the respondent in the course of a proceeding before the Tribunal. The respondent’s impugned statements and actions were thus clearly made and/or performed on occasions of absolute privilege. The applicant therefore cannot rely on them to found a claim under the Code. The Application must be dismissed on this basis alone.

21Moreover, even if the doctrine of absolute privilege did not prevent the applicant from pursuing the Application, I would still dismiss the Application on the basis that the applicant has no reasonable prospect of proving that the respondent reprised and/or discriminated against him contrary to the Code.

Reprisal and Discrimination Claims

22In order to succeed in a claim of reprisal under s. 8 of the Code, the applicant would have to establish that the respondent retaliated against him or threatened to do so because the applicant had claimed or enforced rights under the Code; instituted or participated in proceedings under the Code; or refused to infringe the rights of another person under the Code. In addition, the applicant would have to prove that the respondent took action against him with the intent to punish or retaliate against the applicant. Noble v. York University, 2010 HRTO 878, at para. 31.

23In this case, the applicant was certainly claiming and/or enforcing his rights under the Code and/or instituting and participating in proceedings under the Code when he filed his Application in Tribunal file 2009-02847-I. However, in my view, the applicant has no reasonable prospect of success in proving that the respondent reprised against him for engaging in such activities. There is no basis upon which the Tribunal might conclude that the respondent was retaliating against the applicant when it referred to and relied upon information in the applicant’s O.S.R. in responding to the Application against it. On the contrary, all indications are that the respondent was merely defending itself by referring to information that the applicant himself made relevant by virtue of his allegations in Tribunal file 2009-02847-I: 2011 HRTO 2110, at para. 27-30.

24Nor are there any facts alleged in this case that, if true, would allow the Tribunal to conclude that any of the respondent’s actions during the course of the proceeding in Tribunal file 2009-02847-I were taken with the intention of punishing the applicant or retaliating against him for having brought a human rights claim against the respondent.

25Similarly, there are no facts alleged in this case that, if true, would allow the Tribunal to conclude that the respondent discriminated against the applicant because of his age or disability.

26In order to succeed in his discrimination claim, the applicant would have to prove not only that the respondent treated him in a differential and disadvantageous manner when it accessed and used information in his Ontario Student Record, but that such differential and disadvantageous treatment was “because of” the applicant’s age and/or disability.

27When I asked the applicant’s next friend, during the summary hearing, how she proposed to establish a link between the alleged disadvantageous treatment and the applicant’s age and/or disability, she suggested that the applicant “might have had more control” over the information contained in his O.S.R. if he had not been a minor child at the relevant time. The applicant’s next friend also stated that she was “not sure” if information contained in the applicant’s O.S.R. would have been accessed and disclosed by the respondent if the applicant did not have a disability. These submissions are entirely speculative. They do not constitute a basis upon which the Tribunal might conclude that the respondent acted the way it did because of the applicant’s age and/or disability.

28In support of her discrimination claim, the applicant’s next friend also points out that the respondents in other cases before the Tribunal, such as T.S. v. Toronto District School Board, 2011 HRTO 1471, Pellew v. Muki Baum Treatment Centres, 2010 HRTO 222, and Regisford v. Dufferin-Peel Catholic District School Board, 2009 HRTO 1429, sought an order requiring the applicants in those cases to consent to disclosure of their O.S.R. information before relying upon it in proceedings before the Tribunal. The applicant’s next friend submits that the fact that the applicant’s O.S.R. was not dealt with in a similar fashion by the respondent in this case demonstrates that the respondent violated the applicant’s right to “equal treatment” under the Code. I disagree. Whatever the actions of other respondents in other cases, they cannot assist the applicant in showing that the respondent in this case treated the applicant in a differential and disadvantageous manner because of a prohibited ground under the Code.

29During the summary hearing, the applicant’s next friend also suggested that she could establish that the respondent’s actions constituted discrimination on the basis of disability by establishing that the applicant’s Ontario Student Record contained highly sensitive information regarding his disability. However, the mere fact that the respondent accessed and relied upon sensitive information about the applicant’s disability in the course of responding to a human rights Application is not a basis upon which the Tribunal might conclude that the respondent’s actions were because of the applicant’s disability, which is what would be required in order for the applicant to succeed in his discrimination claim.

30Finally, I agree with the respondent that the claim that the respondent discriminated against the applicant because he is a minor child must fail because “age” is defined in s. 10 of the Code to mean “an age that is 18 years or more”. Even if the applicant were able to link the respondent’s actions to his status as a minor, there would be no statutory basis for finding the respondent’s actions to be contrary to the Code.

31Accordingly, even if the doctrine of absolute privilege did not prevent the applicant from pursuing the Application, for all of the above reasons, I would find that the applicant’s reprisal and discrimination claims have no reasonable prospect of success and dismiss them accordingly.

The [Canadian Charter of Rights and Freedoms](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

32The applicant’s next friend also seeks to argue that the respondent infringed the applicant’s constitutional rights under the Canadian Charter of Rights and Freedoms, The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11 (the “Charter”). In particular, the applicant’s next friend contends that, by accessing and using information in the applicant’s O.S.R. without parental consent, the respondent infringed the applicant’s Charter right to be secure against unreasonable search and seizure (s. 8); right not to be subjected to cruel and unusual punishment (s. 12); and his right to equality without discrimination (s. 15).

33As I explained to the applicant during the summary hearing, the Tribunal does not have free-standing jurisdiction to determine whether a person’s rights under the Charter have been infringed. On the contrary, the Tribunal only has jurisdiction to determine Charter issues that arise in the course of the Tribunal exercising its statutory mandate to determine whether a person’s rights under the Code have been infringed: R. v. Conway, 2010 SCC 22, at para. 22; Kostiuk v. Toronto Community Housing Corporation, 2012 HRTO 388.

34In this case, the applicant’s next friend is not challenging the constitutional validity of any provision of the Code. Nor would the Tribunal be required to determine the applicant’s Charter challenges in order to determine the Code issues raised in the Application. Rather, it is clear that the applicant’s next friend is seeking to advance stand-alone arguments that the respondent’s actions infringed the applicant’s rights under the Charter. The Tribunal does not have jurisdiction to deal with such arguments.

35Given the Tribunal’s lack of jurisdiction over the Charter allegations raised by the applicant, I find that this aspect of the Application also has no reasonable prospect of success. It is dismissed accordingly.

ORDER

36The Application is dismissed.