C.M. v. Toronto Catholic District School Board, 2012 HRTO 2307

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

C.M, and J.H. by his next friend S.H. Applicants

-and-

Toronto Catholic District School Board Respondent

INTERIM DECISION

Adjudicator: Eric Whist Date: December 7, 2012 Citation: 2012 HRTO 2307 Indexed as: C.M. v. Toronto Catholic District School Board

1The Interim Decision addresses the respondent’s request for production of the applicant, J.H.’s, Ontario School Record (“OSR”).

BACKGROUND

2The applicant in Application 2010-06186-I, J.H., is a grade 5 student enrolled in the respondent Board. This Application was brought on J.H.’s behalf by his mother, S.H., acting as his next friend. The applicant in file 2010-05964-I is C.M., the father of J.H. The Applications collectively allege discrimination in the provision of services on the basis of race, colour, disability and association contrary to the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). In Interim Decision 2011 HRTO 1997, dated November 3, 2011, the Tribunal determined that the two Applications would be consolidated. A hearing has now been scheduled for March 21 and 22, 2013 to consider these Applications.

3On August 8, 2012, the respondent filed a Request for an Order during Proceedings (“RFOP”). The respondent requests that the Tribunal order S.H. the mother and next friend of the applicant, J.H., to consent to the respondent accessing and using the contents of the applicant’s OSR in order to appropriately and sufficiently address the allegations of discrimination based on disability raised by the applicant. OSR documents, which are in the possession of the respondent, include student academic grades, records of discipline, special needs assessments, and documentation related to the Local Identification Placement and Review Committee which might include medical reports for J.H. The respondent submits that these OSR materials are arguably relevant because the applicant is relying, in part, on allegations that the applicant has been diagnosed with Attention Deficient and Hyperactivity Disorder (“ADHD”) and has been discriminated against by the respondent due to this condition.

4A student’s OSR is a confidential document protected under the Education Act, Section 266(2) and (10). The respondent submits that the mechanism for the Tribunal to order access to confidential documents such as the OSR is the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56 (MFIPPA). The respondent submits that the leading case regarding the production of OSR documents is Hastings and Prince Edward County District School Board v. Ontario Secondary Schools Teachers Federation (Local 29)(Willcock Grievance) [2000] O.L.A.A. No. 823, a labour arbitration case that sets out a five part test for a party requesting access to a student’s OSR. The five part test states that an OSR should only be produced when:

• It is essential for the course of natural justice at a hearing
• The record is relevant and has significant probative value to the issues in the case
• When the probative value outweighs the social interests in protecting the documents and information
• When the nature of the case is of sufficient weight and significance to override the need to protect the information and documents in the OSR
• Safeguards can be put in place to ensure the optimum level of protection of privacy to students involved.

The respondent provides submissions on why it is of the view that it meets this test.

5The applicant’s next friend has not filed a Response to the respondent’s RFOP.

ANALYSIS AND DECISION

6The threshold for production and disclosure of documents before the Tribunal is “arguable relevance” – not a particularly high bar. However, there must be some relevance and the party seeking production must demonstrate a nexus between the information or document sought and issues in dispute before the Tribunal. (Neusch v. Ontario (Ministry of Transportation) (2002), 2002 CanLII 46508 (ON HRT), 43 C.H.R.R. D/171 at paragraph 38.

7I accept the respondent’s basic contention that there are documents in the applicant’s OSR that could be arguably relevant to its case given that the OSR clearly contains documents that relate to the respondent’s interactions with the applicant while a student with the respondent.

8The respondent has referred generally to documents contained in the applicant’s OSR as being relevant to its case suggesting, in effect, that it might potentially want to access and rely on any of the documents in the applicant’s OSR. I am of the view, that this may be overly broad and it is reasonable and appropriate to limit the respondent’s request for documents from the OSR to those that relate to the applicant’s experience as a student at St Brigid’s Catholic School during the school years 2007-2008 and 2008-2009 as it is the treatment that the applicant received while attending this school during these two school years which is the subject of the Application. Such documents would, in my view, meet the test of being arguably relevant.

9However, while such documents may be arguably relevant Section 266(2) of the Education Act, R.S.O. 1990, c. E.2, as amended, precludes disclosure of information and/or documents from a pupil’s OSR without the written permission of the parent or guardian of the pupil where the pupil is a minor.

10The Tribunal has dealt with a number of instances in which a respondent has requested disclosure of a student’s OSR. Unlike other cases at this Tribunal where a respondent’s request for permission to use and disclose the OSR have been found to be premature (See Campbell v. Toronto District School Board, 2010 HRTO 463) this matter is proceeding to a scheduled hearing and as such the respondent’s request is timely.

11The Tribunal has ordered an applicant’s legal guardian to provide permission for respondents to use and rely upon a student’s OSR, in whole or in part, in cases where the documents contained in the OSR are arguably relevant to the allegations raised in a Tribunal proceeding and where no objection to such use and disclosure has been raised by the applicant. See Stock v. District School Board of Niagara, 2009 HRTO 2039 and Persaud v. Toronto District School Board, 2008 HRTO 92.

12The Tribunal has also determined that a respondent must be permitted to rely on relevant documents in an applicant’s OSR in order to ensure a fair and just hearing. In E.P. v. Ottawa Catholic School Board, 2009 HRTO 1702, the Tribunal determined that it would be abuse of process for the applicant’s litigation guardian to withhold consent to the production of documents that were crucial to the resolution of the Application. In this case the Tribunal ordered to applicant’s litigation guardian to provide her written consent to the disclosure of specific documents in the applicant’s OSR within five days.

13In other cases where an applicant has clearly objected to a request for an OSR the Tribunal has determined that it would not issue an order compelling the applicant to provide consent to the use of OSR documents. See Pellew v. Muki Baum Treatment Centres, 2010 HRTO 222. However, in this case, the Tribunal noted at para. 13:

There may, however, be consequences for a party that makes allegations of discrimination which relate to privileged documents, and then withholds consent to the disclosure of those documents such that the respondent is prevented from meaningfully responding to the allegations. On its own initiative, or at the request of a party, the Tribunal may consider whether the Application in whole or in part amounts to an abuse of process in such circumstances.

14The fact that in the present case the applicant’s next friend has failed to file a response to the respondent’s RFOP does leave ambiguous the question of whether the applicant objects or consents to the respondent relying on documents in the applicant’s OSR.

15I am of the view that, given all of these circumstances, I will follow the general direction set out in the Tribunal’s decision in T.S. v. Toronto District School Board, 2011 HRTO 1471 and followed in G.A. v. York Region District School Board, 2011 HRTO 2110.

16Like my colleagues in T.S. v. Toronto District School Board, above, and G.A. v. York Region District School Board, above, I take the view that it is not necessary for me to rule on the legal arguments presented by the respondent. I do not need to resolve the legal issues currently before me including the issue of whether the provisions of the MFIPPA override the confidentiality provisions of section 266(2) of the Education Act and the applicability of the case law cited by the respondent. I would note here that the decision cited by the respondent, Prince Edward County District School Board v. Ontario Secondary Schools Teachers Federation, involves a teacher grieving the termination of his employment which was due, in part, to his having slapped a student. The teacher’s Federation requested that the school board release documents from this student’s OSR because it was of the view that the teacher’s behaviour and pleas for mitigation required consideration of this student’s behaviour, personality and past history. These are requests for third party records. I see the determination as to whether OSR records should be released under these circumstances as quite distinct from the present case in which the student is a party to the dispute in question and is being asked to release his own OSR by the other party involved in the dispute. Accordingly, this arbitral case is of little precedential value and I prefer to rely on the Tribunal’s own relevant case law.

17In T.S. v. Toronto District School Board, above, the Tribunal determined that it was necessary for a fair and just proceeding for the respondent to be able to use and disclose documents and information from the OSR (subject to a time limitation) and subsequently directed the applicant’s next friend to indicate, within two weeks, whether she would consent to the respondent’s use and disclosure of documents and information from the OSR. The Tribunal indicated that if the applicant did not provide her consent the Tribunal would consider whether the Application should proceed and might seek submissions on whether it should be dismissed as an abuse of process.

18In G.A. v. York Region District School Board, above, the Tribunal accepted, that it would constitute an abuse of process for the applicant’s next friend to withhold consent for the respondent to use documents contained in the applicant’s OSR while still seeking to proceed to have her allegations of discrimination heard by this Tribunal. The Tribunal then directed the applicant’s next friend to state in writing whether within two weeks she would give consent to the respondent to use and disclose documents and information from the OSR of the applicant and indicating that if she did not give her consent the Application would be dismissed as an abuse of process.

19I am of the view that the appropriate next step is for the applicant’s next friend to clarify whether she is prepared to grant written permission to the respondent to rely on documents in the OSR either in whole or in part. I am of the further view that if the applicant does not provide this consent it is open to the Tribunal to consider whether the Application should be dismissed as an abuse of process.

DIRECTIONS

20The applicant’s next friend is directed to state in writing within fourteen days from the date of this Interim Decision as to whether she grants the respondent permission to rely on documents in the applicant’s OSR that relate to the respondent’s interactions with the applicant while a student at St Brigid’s Catholic School during the school years 2007-2008 and 2008-2009. If the applicant’s next friend is of the view that some of the documents in the OSR related to these two school years are not arguably relevant to the issues in dispute and that her consent should be accordingly limited, she should provide detailed and specific submissions in support. If the applicant does not grant permission the Tribunal will consider whether the Application should proceed and may seek submissions on whether it should be dismissed as an abuse of process.

21Additionally, and having regard to the applicant’s failure to file a Response to the respondent’s RFOP, the Tribunal may dismiss the Application as abandoned if the applicant fails to comply with the directions in this Interim Decision.

22Nothing in my direction precludes the Vice-chair presiding at the hearing of this matter from ruling on the admissibility or relevance of any of the documents the parties disclose for the hearing.

23I am not seized of this matter.