Human Rights Tribunal of Ontario
B E T W E E N:
E.A. and K.A. by their next friend M.A.
Applicants
-and-
Simcoe-Muskoka Catholic District School Board
Respondent
INTERIM DECISION
Adjudicator: Paul Aterman
Indexed as: E.A. v. Simcoe-Muskoka Catholic District School Board
APPEARANCES
E.A. and K.A., Applicants
No one appearing
Simcoe-Muskoka Catholic District School Board, Respondent
Gillian Tuck Kutarna, Counsel
background
1The applicants, by their next friend, have filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to services in education because of race, colour, ancestry, place of origin, citizenship and ethnic origin.
2They allege that the respondent school board has discriminated against them by failing to provide E.A. with adequate educational support and treating him differently from other pupils, by calling the Children’s Aid Society (the “CAS”) to investigate the applicants’ family on two occasions and by allowing the respondent’s staff to insult both applicants with racial slurs. The applicants maintain that the respondent’s treatment of them caused their parents to remove them from the school and to move them to live with their grandparents in another town. They maintain that the respondent is the cause of this separation from their parents.
3A hearing is scheduled for September 4, 2013 and the Tribunal’s Notice of Confirmation of Hearing has set out timelines for the parties to exchange arguably relevant documents and for the exchange and filing with the Tribunal of documents and witness statements that they intend to rely on at the hearing. To date the respondent has sent its arguably relevant documents to the applicants, but they have not sent theirs to the respondent.
4In order to prepare for the hearing the respondent has made two requests. One is for the Tribunal to order the applicants to produce all of their arguably relevant documents, including the applicants’ Ontario School Records (“OSR”); their CAS file and any correspondence from the CAS in the period January 2010 to the present; and a kinship agreement (if it exists) providing for the applicants’ residence with their grandparents.
5The second request is for the applicant to provide particulars which would shed light on a number of the applicants’ allegations. These include when and with whom the applicants’ mother met in her first encounter with the respondent’s school staff; specifics of the acts of discrimination alleged by the applicants, including the names of staff, dates of the alleged acts and the particulars of those acts; any evidence that would support the applicants’ claims of the impact the alleged discrimination has had upon them; and any evidence of the applicants’ academic progress since leaving the respondent’s school.
6A case management conference call was scheduled for July 26, 2013 to address these requests. The respondent participated but the applicants’ next friend did not, despite having been given notice of the call. After allowing the applicants a grace period of half an hour to participate, the call proceeded in their absence.
7For the reasons set out below I conclude that both requests should be granted. The documents requested by the respondent meet the test of arguable relevance, with the exception that the respondent’s request for the CAS file and related correspondence is overly broad and is narrowed on the terms set out below. The request for particulars is granted because it asks the applicants to provide sufficient detail to enable the respondent to know the case it has to meet in defending against the applicants’ allegations.
respondent’s request for production
8The OSRs will contain evidence of how the applicants were treated by the respondent and how they are doing in their new school. The question of how the respondent’s teachers and administrators treated the applicants is at the heart of their allegations of discrimination, and they also maintain that their academic performance improved dramatically upon being removed from this allegedly racist environment. 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.
9Disclosure of the OSRs depends upon the applicants’ consent, through their next friend, and they are not obliged to give it. However, having made allegations of discrimination, the proof of which will depend, in part at least, on the disclosure of the OSRs, the applicants’ have a choice. They can either consent to their disclosure or run the risk that if they refuse to disclose the OSRs, the Tribunal may consider their Application to be an abuse of process. In coming to this determination I agree with the reasoning of the Tribunal in the following similar cases: C.M. v. Toronto Catholic District School Board, 2012 HRTO 2307 and E.P. v. Ottawa Catholic School Board, 2009 HRTO 1702.
10The respondent’s request for the CAS file and related correspondence is not limited in its scope and could capture interactions between the CAS, the applicants and their parents that have nothing to do with this Application. What is relevant to this Application are the applicants’ allegations that the respondent in some way acted improperly in relation to two incidents. The first incident was a call made by a teacher of E.A. in the academic year 2010-11 to the CAS to report that the child alleged having been mistreated by his father. The second is in relation to an allegation by K.A. on October 4, 2012 that the father mistreated E.A.. This also resulted in a teacher calling the CAS. Any documentation in the CAS file and any correspondence relating to these two incidents are arguably relevant. If these documents are not in the applicants’ possession they are directed, through their father as next friend, to make reasonable efforts to obtain these documents including those in the possession of the CAS that they have the legal right to obtain, and to provide details about their attempts to obtain their CAS records.
11If a kinship agreement exists that provides for the applicants to reside with their grandparents, then this is arguably relevant to the applicants’ assertion that the actions of the respondent contributed to a family break up. The applicants are accordingly directed to produce this document.
12The applicants, through their next friend, are directed to indicate in writing to the Tribunal and the respondent within five days of this Interim Decision whether they consent to the disclosure of the OSRs. If they do not respond, their Application may be dismissed as abandoned. If they do not consent to disclosure, they must set out in writing why they do not consent and why they believe their Application should not be dismissed as an abuse of process.
13If the applicants consent to the disclosure of the OSRs, then these documents must be provided to the respondent by August 9, 2013.
14The applicants must also provide the respondent with the following documents by August 9, 2013: those parts of the CAS file and any related correspondence that deal with the two incidents referred to in paragraph 10 above; the kinship agreement referred to in paragraph 11 above; and any other arguably relevant documents. If they do not provide these documents by this deadline their Application may be dismissed as abandoned.
respondent’s request for particulars
15The respondent’s request for particulars clearly sets out details which necessarily flow from the allegations which the applicants are making. Unless the respondent is told what specific discriminatory acts were committed by particular employees and is given details of the circumstances and times of the alleged acts it will not be able to adequately respond to the applicants’ allegations.
16The applicants are directed to provide the respondent with all of the particulars requested by it in its request for particulars. The applicants can comply with this direction by including those details in the witness statement or statements that they are directed to provide below.
disclosure of documents and witness statements
17In addition to requiring parties to exchange arguably relevant documents, the Tribunal’s Rules of Procedure require both parties to provide to each other and file with the Tribunal a witness list, witness statements, and copies of documents the party intends to rely upon at the hearing. These materials are required under Rules 16 and 17, and are described in the Notice of Confirmation of Hearing dated April 22, 2013 and in the Tribunal’s Rules. The parties are directed to adhere to the following timelines:
The applicants are to provide to the respondent and file with the Tribunal their witness list, witness statements, and copies of documents they intend to rely upon at the hearing by August 12, 2013. If they do not do so by this deadline, the Application may be dismissed as abandoned.
The respondent is directed to provide to the applicant and file with the Tribunal its witness list, witness statements, and copies of documents it intends to rely upon at the hearing by August 19, 2013. If the respondent does not do so by this deadline, the Tribunal may take any or all of the steps in Rule 5, including not permitting the respondent to call any witnesses at the hearing.
order
18The respondent’s requests are granted and the Tribunal makes the following orders:
The applicants, through their next friend, are directed to indicate in writing to the Tribunal and the respondent within five days of this Interim Decision whether they consent to the disclosure of the OSRs. If they do not respond, their Application may be dismissed as abandoned. If they do not consent to disclosure, they must set out in writing why they do not consent and why they believe their Application should not be dismissed as an abuse of process.
If the applicants consent to the disclosure of the OSRs, then these documents must be provided to the respondent by August 9, 2013.
The applicants must also provide the respondent with the following documents by August 9, 2013: those parts of the CAS file and any related correspondence that deal with the two incidents referred to in paragraph 10 above; the kinship agreement referred to in paragraph 11 above; and any other arguably relevant documents. If they do not provide these documents to the respondent by this deadline their Application may be dismissed as abandoned.
The applicants are to provide to the respondent and file with the Tribunal their witness list, witness statements, and copies of documents they intend to rely upon at the hearing by August 12, 2013. If they do not do so by this deadline, their Application may be dismissed as abandoned.
The respondent is directed to provide to the applicants and file with the Tribunal its witness list, witness statements, and copies of documents it intends to rely upon at the hearing by August 19, 2013. If the respondent does not do so by this deadline, the Tribunal may take any or all of the steps in Rule 5, including not permitting the respondent to call any witnesses at the hearing.
Dated at Toronto, this 1st day of August, 2013.
“Signed By”
Paul Aterman
Vice-chair