B.O. by his Litigation Guardian A.O. v. Northwest Catholic District School Board, 2014 HRTO 360

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

B.O. by his next friend A.O.

Applicant

-and-

Northwest Catholic District School Board

Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: March 14, 2014

Citation: 2014 HRTO 360

Indexed as: B.O. by his Litigation Guardian A.O. v. Northwest Catholic District School Board

APPEARANCES

B.O. by his next friend A.O., Applicant

A.O., Next Friend

Northwest Catholic District School Board, Respondent

Eric Roher, Counsel

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, services and facilities because of disability. The respondent and applicant have each filed a Request for an Order During Proceedings seeking production of documents. This Interim Decision addresses those requests.

Background

2The applicant, B.O. attended St. Francis Catholic Elementary School (the “school”) in the respondent school board during the 2011/2012 and 2012/2013 school years. The applicant states that he has been diagnosed with Attention Deficit Hyperactive Disorder (“ADHD”) and possible Autism Spectrum Disorder and that his parents identified him as having special needs when they registered him at the school. The applicant alleges that the respondent did not take adequate action to accommodate the applicant’s disability related needs. The applicant also alleges that he was subject to harassment and discrimination because of his disability by other students and his classroom teacher and that the respondent took no action when he and his parents complained about this behaviour. Ultimately, the applicant’s parents decided to enroll him in a different school. The respondent state that it was not aware that the applicant had been diagnosed with ADHD until October 2012, when his mother inquired about an Individual Education Plan (“IEP”) for him. The respondent states that it took appropriate steps to design and implement an IEP for the applicant and that the applicant achieved academic success in the 2012/2013 school year. The respondent denies that the applicant’s classroom teacher harassed or discriminated against the applicant and that he allowed other students to do so.

The respondent’s request

3The respondent filed its request on December 3, 2013. The applicant did not respond to the request and the time for doing so has passed. The applicant seeks an order directing the applicant’s parents/next friend to provide their written permission to the respondent to use, disclose and submit into evidence information and documents from the applicant’s Ontario Student Record (“OSR”). The respondent submits that it intends to adduce documents from the applicant’s OSR as evidence in this proceeding. The respondent submits that documents in the OSR address the accommodation the respondent provided to the applicant and the interactions between the applicant, his parents and the respondent and are therefore arguably relevant. The respondent submits that pursuant to section 266(2) of the Education Act, R.S.O 1990, c. E.2 the respondent is not permitted to use the OSR without the written permission of the parents. Section 266(2) of the Education Act states 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.

The Applicant’s Request

4The applicant requests an order requiring the respondent to produce records of complaints regarding the applicant’s former classroom teacher, Mr. H., and the school. The applicant submits that other students have left the school because of Mr. H. and that these records are important to his case.

The Response

5The respondent filed a Response to a Request for Order in which it opposes the Request (the “Response”). In the Response, the respondent submits that it appears that the applicant seeks documents about other students who were taught by Mr. H. The respondent submits that the applicant does not allege that the records sought in the Request are related to or show any connection to a prohibited ground of discrimination. The respondent submits that the Request is speculative and amounts to a “fishing expedition”. Accordingly, the respondent submits that the Request should be denied.

Analysis and Decision

6At the pre-hearing stage, the Tribunal will generally order disclosure of arguably relevant documents, unless the documents are privileged or raise privacy concerns, see McKay v. Toronto Police Services Board, 2009 HRTO 1220. “Arguable relevance” is not a particularly high threshold, but the party seeking production must establish that the document(s) in question may prove or disprove a fact in issue in the dispute. A finding that a document is arguably relevant does not necessarily mean that the document will actually be found to be relevant or admissible at a hearing.

The Respondent’s Request

7Documents in the applicant’s OSR related to any accommodation provided by the respondent to the applicant and related to the interactions between the applicant, his parents and the respondent are, in my view, arguably relevant to this proceeding. Section 266(2) of the Education Act restricts how documents in an OSR may be used and, in particular, requires parental consent for such documents to be used as evidence in a proceeding. Without access to these records the respondent may be unable to make full answer and defence to the Application, which, of course, alleges harassment and discrimination in a school setting. In these circumstances, I find it appropriate to require the applicant’s parents/next friend to provide written permission to the respondent to use, disclose and submit into evidence information and documents from the applicant’s OSR.

The Applicant’s Request

8It appears that the applicant seeks evidence of behaviour by the respondent, particularly Mr. H., towards other students that is similar to that allegedly experienced by B.O. The applicant’s request, however, is much broader than that, as it seeks production of complaints regarding Mr. H. and the school. Complaints against a school or teacher could be for any number of reasons, most of which would have no relevance to the issues arising in this Application. Complaints against a school could also involve staff members who have no connection to this matter. In my view, complaints, if any, about how Mr. H dealt with other students with disabilities are arguably relevant to the applicant’s allegations and should be disclosed.

Order

9The Tribunal order as follows:

1. Within 14 days of the date of this Interim Decision, the applicant’s parents/next friend shall provide written permission to the respondent to use, disclose and submit into evidence information and documents from the applicant’s OSR; and,

2. Within 14 days of the date of this Interim Decision, the Respondent shall deliver copies of any records in its possession related to complaints against Mr. H. regarding his treatment of students with disabilities.

10I direct the parties’ attention to Rule 3.3. of the Tribunal’s Rules of Procedure, which states as follows:

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

Accordingly, documents obtained in the course of the Application may only be used in the course of this proceeding and may not be used for any other purpose or disclosed to third parties.