Human Rights Tribunal of Ontario
B E T W E E N:
S.T. by her next friend A.T. Applicant
-and-
Cheryl Paige and Nimet Kara Respondents
A N D B E T W E E N:
T.T. by his next friend A.T. Applicant
-and-
Cheryl Paige and Nimet Kara Respondents
INTERIM DECISION
Adjudicator: Naomi Overend Date: February 6, 2013 Citation: 2013 HRTO 220 Indexed as: S.T. v. Paige
WRITTEN SUBMISSIONS
S.T. and T.T., Applicants A.T. and A.T., Next Friends Cheryl Paige, Respondent Glorie Alfred, Counsel
Introduction
1These are two Applications filed by the parents of S.T. and T.T. under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to goods, services and facilities because of ancestry, ethnic origin, place of origin, race and reprisal. They were filed on the applicants’ behalf by the applicants’ mother and father. The Applications with respect to each applicant are identical, but for the name of the applicant.
2The Applications name two individuals as respondents. The first, Cheryl Paige, is the Principal of the school attended by the applicants. The purpose of this Interim Decision is to address a Request for an Order During Proceeding (Form 10) filed by Ms. Paige (“the respondent”) in each file asking the Tribunal to direct the applicants’ respective next friend to permit her to “use, disclose and submit as evidence to the Tribunal, information and documents” from the applicants’ respective Ontario Student Records (“OSR”).
3The respondent states that in order to prepare for the upcoming summary hearing, she will need to disclose to the applicants any documents upon which she intends to rely 14 days prior to the hearing. This summary hearing is scheduled for February 21, 2013.
4The applicants’ parents did not file Responses to the Request for Order (Form 11) in the required time, instead filing their own Request for Order (Form 10). It is not clear from these Requests that the applicants are, in fact, making a request for any form of order from the Tribunal. Having said that, the written submissions attached to the applicants’ Request for Order do contain a limited response to the respondent’s Request:
… we have no objection to such request, provided other parents that have their children’s name in each report/incident will provide similar consent. This will be fair to us in order to have balance view of each matter and use such to make our case too. Also, similar consent will also be required from teachers and staff that witnessed or reported the incidences. This would enable us to have full detailed of each matter so as to have full appreciation of everyone’s role in order to make a determination about how our children have been treated.
Decision and Analysis
5Section 266 of the Education Act, R.S.O. 1990, c. E.2, provides 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).
(2) A record is privileged for the information and use of supervisory officers and the principal and teachers of the school for the improvement of instruction 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.
6The respondent argues that section 266(2) establishes that the OSR is privileged and that she must obtain a student’s written permission to access the OSR. In assessing the competing interests in determining whether to order the applicant’s parents to give such written permission, this Tribunal in Campbell v. Toronto District School Board, 2010 HRTO 463, stated at para. 11:
It is apparent that in