L.B. v. Toronto District School Board, 2014 HRTO 1747

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

L.B. as represented by Litigation Guardian S.B. Applicant

-and-

Toronto District School Board Respondent

interim DECISION

Adjudicator: Eva Nichols Date: December 3, 2014 Citation: 2014 HRTO 1747 Indexed as: L.B. v. Toronto District School Board

WRITTEN SUBMISSIONS

L.B., as represented by Litigation Guardian S.B., Applicant Emily Shepard, Counsel

Toronto District School Board, Respondent Brenda J. Bowlby, Counsel

Introduction

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 services because of disability.

2A hearing in this matter is scheduled to proceed in Toronto on January 14 and 15, 2015. The purpose of this Interim Decision is to address a Request for Order during Proceedings ("RFOP") filed by the respondent on November 17, 2014.

3The respondent requested that the applicant either provide consent to permit the respondent to obtain the applicant's medical records from a series of health practitioners and health care institutions, named in paragraph [4] of this Interim Decision, or that the applicant produce these documents to the respondent on the grounds that they are arguably relevant to these proceedings.

4The health practitioners and health care institutions cited in the RFOP are as follows:

1. Dr. Marlinda Freire
2. Dr. Michael Allan
3. Dr. Michelle Marshall
4. Dr. Robin Holloway
5. Dr. John Mumm
6. Willow Centre
7. Hospital for Sick Children
8. Hincks/ Dellcrest Centre
9. CAMH

5The respondent also asked that the applicant disclose all documents relating to the applicant's application for a disability credit.

6The respondent does not question whether the applicant has disabilities. However, the respondent does question whether the applicant's disabilities have been properly and adequately assessed and whether he had received appropriate treatment outside of school for his disabilities.

7In the response filed by the applicant on November 20, 2014, the applicant opposed the respondent's requests on the following grounds:

(a) the applicant is actively working to disclose relevant medical records from those involved in the applicant's case at the time that the alleged discrimination occurred; and

(b) the respondent has requested some records that are not relevant based on the time period defined in the Application.

8The applicant further stated that:

(a) all relevant medical records will be provided to the respondent prior to the hearing in this matter;

(b) all medical records considered must be limited to the relevant time frame; and

(c) the applicant's privacy with regard to medical records must be protected.

The production of medical records

9I accept the applicant's commitment that medical records will be provided to the respondent and to the Tribunal prior to the hearing and in accordance with this Interim Decision.

10This Application relates to the accommodation of the applicant's disabilities by the school board. Such accommodations are determined on the basis of the assessment information available to the school board, either from its own assessments and/or from the data provided by the applicant. The Application states that L.B.'s assessments were paid for by the applicant's litigation guardian. In-school accommodations are determined on the basis of the student's identification at an Identification Placement Review Committee (IPRC), if the student is deemed exceptional, and are included in the student's Individual Education Plan (IEP). Therefore, in order to consider whether the applicant's disability has been appropriately accommodated to the point of undue hardship by the school board, all assessments of the applicant are arguably relevant.

11School boards do not provide treatment to their students. The treatment of the applicant's disability by health care providers do not relate directly to the accommodation of the applicant's disability at school. Therefore, there is no need for the applicant to provide medical records which solely or primarily relate to the applicant's treatment by the named practitioners and health care institutions.

12The specific documentation submitted by the applicant to Revenue Canada for the purposes of obtaining a disability credit is not directly relevant to the Tribunal proceedings, since the respondent does not question that the applicant has a disability. Therefore, I am not prepared to order the applicant to disclose those medical records for the purposes of this proceeding.

Relevant time frame

13In the application, the applicant has provided an overview of L.B.'s experience throughout his school years with the respondent school board, including Grades 1 to 6, with particular reference to his identification as an exceptional student and his access to special education services, programming and accommodations within the respondent school board.

14In the response to the RFOP, the applicant states that the relevant time frame for this application began in September 2011, when the applicant was in Grade 8. However, in determining whether the applicant's disability was, in fact, appropriately accommodated to the point of undue hardship by the respondent school board, it is important for me to consider the applicant's full history within the school board.

15The Tribunal has generally held that the basic principle in determining a production request is whether the requested documents are "arguably relevant" to the issues in dispute in the proceeding. See McKay v. Toronto Police Services Board, 2009 HRTO 1220 at paras. 12-13. In that decision, the Tribunal stated that:

The threshold test for disclosure at the pre-hearing stage of a human rights proceeding is "arguable relevance, which requires that there be some relevance between the sought-after material(s) and the subject matter of the complaint.

16While the applicant may choose to focus his evidence and arguments on the period beginning in September 2011, information related to the applicant's earlier education and the accommodation of his disabilities, if any, is relevant.

The applicant's privacy

17The Tribunal is sensitive to privacy issues, particularly in relation to the production of medical records. See Lampi v. Princess House Products Canada Inc., 2008 HRTO 1.

18Since the original application cites a great deal of detail about the applicant's mental health issues, which provide the substance of the complaint before the Tribunal, I cannot limit the Tribunal's or the respondent's access to the information provided by and available from medical practitioners or the health care institutions that were responsible for diagnosing the applicant's needs and recommending accommodations prior to September 2011.

19However, as the Tribunal stated in G.A. v. York Region District School Board, 2011 HRTO 2110 at para. 11:

I have heard and understand the applicant's concerns that the medical records contain private and highly sensitive material. The parties are, of course, reminded of their obligation to treat sensitive medical information with the utmost care and to be mindful of their responsibility to ensure that the material that is produced is not used for any purposes other than this proceeding.

I feel confident that the parties and the Tribunal will comply with the same expectation in this case.

20Further, I wish to remind the parties of the Tribunal's expectations regarding the confidentiality of documents disclosed under its Rules, which states the following:

Rule 3.3 - Parties and their representatives may not use documents obtained under these Rules for any purpose other than in the proceeding before the Tribunal.

ORDERS

21The Tribunal makes the following orders:

1. The applicant is directed to provide full disclosure of the disability-related diagnostic and assessment records for L.B., obtained from the named medical practitioners and health care facilities for the period from 2005 to the date that he was no longer a resident pupil of the Toronto District School Board; and

2. The applicant is directed to comply with this order no later than Thursday, December 18, 2014.