HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
R.K.K. by his Litigation Guardian N.K.
Applicant
-and-
Crestwood School
Respondent
INTERIM DECISION
Adjudicator: David Muir
Indexed As: R.K.K. v. Crestwood School
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to goods and services because of disability, ethnic origin and age.
2The hearing in this case is scheduled to begin on November 27 and 28, 2014. The parties were obliged to produce to each other all arguably relevant documents in their possession before May 29, 2014.
3Both parties have filed Requests for Order During Proceeding (“Requests”). Neither party initially responded to the Request of the other and accordingly were directed to do so in a Case Assessment Direction issued on July 14, 2014.
4In his Request filed on June 2014 the applicant sought the following documents:
a. Internal email and copies of meeting notes related to the applicant or meetings with either of his parents;
b. All materials produced by the applicant which Crestwood holds;
c. Copies of the grade 4 and grade 5 curriculum including a bibliography of books and materials used in the classroom;
d. Complete copies of grade books and notes including other students' evaluation from Conn, Koffman, and other teachers who evaluated R.K.K.;
e. A copy of the criteria and policy under which the school evaluates all students including the criteria for giving a student a failing grade;
f. Copies of all student submitted material and report cards from the students who attended class with R.K.K.;
g. Any evidence that R.K.K. was evaluated fairly compared to his classmates including the subjective evaluation criteria which Crestwood applied to R.K.K;
h. A list of all students Crestwood gave a failing grade to in the last ten (10) years and the contact information the school has on record;
i. A copy of the school's incorporation documents and shareholder agreements including a current list of officers;
j. A list of all school employees and contractors during the time R.K.K. attended Crestwood and their contact information;
k. A copy of all the school's policies which are provided externally and Internally;
l. A copy of any complaints brought against Crestwood in the last ten (10) years;
m. A copy of Crestwood's operating license from the Ministry of Education and any documents submitted to the Ministry related to that application;
n. A copy of the resume, teaching certificates and Teachers College of Ontario membership numbers for the personnel and management who were involved with R.K.K. over the school year.
5The starting point in assessing a Request such as this are the issues raised in the Application. The applicant alleges that because of his physical impairments and because he was perceived to be a person with a learning disability, the respondent wanted him out of the school.
6The following is a summary of the allegations made in the Application:
a. The applicant alleges that he had completed Grade 3 at another school prior to beginning his attendance with the respondent. He was accepted into Grade 4 but shortly after classes began his mother persuaded the respondent to accept him into Grade 5;
b. The applicant alleges that the music teacher insisted that he play the trumpet despite a physical disability which made it difficult for him to do so. The applicant’s litigation guardian withdrew him from music;
c. In January 2013 the applicant’s litigation guardian met with the respondent, who suggested that the applicant was having difficulties and it was suggested that the applicant be assessed. The applicant’s litigation guardian advised that the family could not afford the cost of such an assessment and the school should continue to do the best they could;
d. The applicant alleges that in March the respondent discriminated against him in relation to participation in the golf club;
e. The applicant alleges that on April 8, 2014 the respondent advised that he would not be able to attend Grade 6 at Crestwood.
7It is clear from the submissions of the applicant in support of these requests that there is a significant amount of “fishing” involved in the Request. Nonetheless, some of the documents sought are clearly relevant to the issues in dispute and should be produced. In this category are the documents described in paragraphs 4 a, b, and c. The documents described in paragraph 4 d are relevant but should be redacted to protect the identities of the other students in the applicant’s class. Similarly the documents described in paragraph 4 e and g are arguably relevant and should be produced.
8The remaining documents sought by the applicant are either irrelevant to the issues in dispute, or are in the nature of a fishing expedition in the hopes that something might turn up. In my view many of the documents related to the performance of other students will not be particularly helpful to resolving this dispute. The primary focus of the case must be the assessment of the applicant against the standards for a grade 5 student in this school, not how he did in relation to his peers. Moreover an inquiry into the performance of the applicant in comparison with his peers invites an extensive inquiry into the circumstances of each of the student which greatly lengthen this hearing to little purpose. Accordingly the documents sought in paragraphs 4 f and h are not relevant to the issues in this case.
9The request made in paragraph 4 l is overbroad. However, the applicant may wish to question the respondent with respect to complaints of similar kind to those made in this Application. Objections to this evidence being sought in the hearing can be addressed at that time.
10I find that the other documents sought by the applicant in paragraphs 4 i, j, and m do not appear to be relevant to the issues in dispute and need not be produced.
11Finally I am also not satisfied how the qualifications of the staff involved in the applicant’s education are relevant to the claims of discrimination made in this case. Accordingly the documents described in paragraph 4 n are not relevant and need not be produced.
The respondent’s Request
12The respondent seeks the production of “all communications between NK and all therapists (including Elana Magder) in regards to the applicant as well as any and all reports”. Alternatively an Direction executed by N.K. to authorize the release of the reports and entire file of the applicant from Elana Magder.
13In my view the materials sought by the respondent, if they exist, are arguably relevant to the issues in dispute in this case. It is agreed between the parties that the respondent expressed concern about the applicant’s performance in January 2013, in part as a consequence of the services of a tutor being retained by the applicant. It is not entirely clear, however, how a speech language pathologist became involved with the applicant, but for purposes of this Request it appears that such a person did become involved with the applicant and may have conducted an assessment of him. This material, if it exists, and unlike some of the material sought by the applicant, relates to the applicant himself and possibly his reading and writing abilities at the time. This may be relevant to the issues in dispute and should be produced.
14The applicant has proposed that the material be produced to N.K. prior to its release to the respondent. This seems appropriate in the circumstances.
Orders and Directions
15The Tribunal makes the following Directions:
a. In addition to its ongoing obligation to produce all relevant documents in its possession the respondent will produce to the applicant within 14 days of this Direction the documents described in paragraph 4 a, b, c, e, and g.
b. The respondent will produce to the applicant within 14 days of the date of this Direction the documents described in paragraph 4 d, redacted to remove the identity of the students.
c. The applicant will take steps forthwith to have produced to him all notes and records including any assessment reports completed by Elana Magder in respect of her tutoring and/or assessment of the applicant while he was a student at the respondent school. The applicant will immediately on receipt of this material produce the file to counsel for the respondent for their review.
16I am not seized.
Dated at Toronto, this 9th day of September, 2014.
“Signed by”
David Muir
Vice-chair