Tsehai v. Durham District School Board, 2015 HRTO 1582

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Noah Tsehai

Applicant

-and-

Durham District School Board, John Bowyer, Andrea Pemberton and Warren Palmer

Respondents

INTERIM DECISION

Adjudicator: Eva Nichols

Date: November 23, 2015

Citation: 2015 HRTO 1582

Indexed as: Tsehai v. Durham District School Board

APPEARANCES

Noah Tsehai, Applicant

Osborne G. Barnwell, Counsel

Durham District School Board, John Bowyer, Andrea Pemberton, and Warren Palmer, Respondents

Kathryn Bird, 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 race, disability, age and reprisal.

2A hearing in this matter began in Toronto on February 19, 2015, continued on June 23, 24, 25, 30 and October 6, 7 and 8. It is scheduled to continue on December 2 3 and 4, 2015.

3This Interim Decision is in response to the respondents’ request for an order (“RFOP”) made to the Tribunal orally on October 6, 2015 and in writing on October 7, 2015.

4The respondents requested that the Tribunal dismiss this Application on the grounds that the applicant engaged in actions which amount to an abuse of the Tribunal’s processes and procedures. The applicant opposed the respondents’ request.

BACKGROUND

5In response to a Form 10 RFOP submitted to the Tribunal on April 7, 2015, I ordered the respondents, in Interim Decision, 2015 HRTO 616, dated May 12, 2015, to disclose anonymized data, i.e., the initials of students, in addition to the applicant, who had been suspended, who had Behaviour Safety Plans, who had Individual Education Plans and/or who had been placed in the Behaviour Intervention Centre alternative program, accompanied by the colour photographs of the students who attended Donald A. Wilson Secondary School during the 2011/12 and 2012/13 school years.

6I ordered the disclosure of this information on the grounds that it is arguably relevant in determining whether the applicant’s allegations regarding the link between race and/or disability and suspensions and other disciplinary interventions as well as placement in locally developed courses, rather than academic and applied courses with accommodations, have any validity.

7Neither the April 7, 2105 RFOP nor the May 12, 2015 Interim Decision addressed the way the applicant planned to utilize the disclosed information in supporting his allegations of discrimination.

8The respondents fully complied with the direction and disclosed the information ordered.

9On July 22, 2015, I issued Interim Decision, 2015 HRTO 969, denying the applicant’s request to call Ms. Akilah Haneef-Jabari as an expert witness. In the decision I agreed that Ms. Haneef-Jabari may be called as a lay witness and would be allowed to comment but not offer an expert opinion upon the data disclosed.

10At the hearing on October 6, 2015, Ms. Haneef-Jabari was called as a witness. A document consisting of the data compiled by her at the request of the applicant and derived from the information disclosed by the respondents was entered as Exhibit A29.

11At this stage, the applicant reported that the document, Exhibit A29, had been disclosed to the Ontario Human Rights Commission (“OHRC”) on July 6, 2015, with an inquiry as to whether the Commission may be interested in intervening in this Application. Currently, the OHRC is not a party to this proceeding nor has it asked for intervenor status.

12Following this disclosure, the respondents asked for an immediate adjournment on the grounds that this disclosure represented an abuse of the Tribunal’s processes and therefore, the Application should be dismissed. Counsel for the applicant did not object to the adjournment. I agreed to adjourn the hearing for the balance of the day and informed the parties that the motion for dismissal would be heard and decided upon at the start of the next hearing day on October 7, 2015.

THE RESPONDENTS’ SUBMISSIONS

13Counsel for the respondents stated that the disclosure of the information compiled by Ms. Haneef-Jabari to the OHRC, an external entity that is not a party to the proceedings, is a breach of the implied undertaking rule contained in common law as well as a breach of the Tribunal’s Rule 3.3. This breach of the Tribunal’s Rules is an abuse of the Tribunal’s process and should result in a dismissal of the Application as a whole.

14In the alternative, if the Application is allowed to proceed, the applicant should be precluded from relying on any of the data disclosed by the respondents obtained as a result of the May 12, 2015, decision.

15The respondents submitted several documents and court and Tribunal decisions to support their motion regarding improper disclosure and abuse of process. In particular, they relied on the Supreme Court of Canada’s decision, Juman v. Doucette 2008 SCC 8. They cited certain principles from this decision, including the fact that pre-trail discovery does not take place in open court and whatever is disclosed in the discovery room stays in the discovery room unless eventually revealed to the court room or disclosed by judicial order. Further they cited the statement that a litigant usually has some assurance that the documents disclosed will not be used for a purpose collateral or ulterior to the proceedings and will only be used for securing justice. They stated that the applicant’s action in this case contravened these principles (paragraphs 25, 26 and 27).

16The respondents argued that the Tribunal and the courts are committed to protecting the privacy of individuals who are not parties to a hearing and that in this case, the students whose coloured photographs were disclosed were not even aware that the disclosure was taking place.

17Further, the respondents submitted that if the applicant truly believed that the disclosure was necessary for public interest purposes, then leave to disclose should have been sought prior to the information being shared with the OHRC. In making this statement, they relied on Juman v. Doucette, see above, at para. 30. As it is, the respondents submit that this step was a conscious and wilful breach of the Tribunal’s Rule 3.3, which must be found to be an abuse of process.

THE APPLICANT’S SUBMISSIONS

18The applicant stated that the information disclosed to the OHRC did not constitute a breach of anybody’s privacy. The information provided in the 21 page summary document did not include any of the raw data disclosed by the respondents and therefore did not do anything other than “contextualize” the applicant’s concerns about the grounds for his suspensions.

19The common law deemed undertaking rule has no direct bearing on the document disclosed in the opinion of applicant’s counsel, since it has no privacy components nor does it represent any prejudice to the school board that is a public institution.

20When this Application was originally filed with the Tribunal, the Human Rights Legal Support Centre was involved and indicated an interest in the outcome. Subsequently, the OHRC had expressed an interest, which resulted in the summary document being disclosed.

21Dismissing the Application would be unjust to the applicant, who has a real complaint. Similarly, limiting the information that the applicant can rely upon would represent unfairness, especially since counsel for the respondents did not object to the document being entered into evidence. Counsel agreed that the data disclosed may indeed be deemed circumstantial, but the Tribunal agreed that it was arguably relevant

22Counsel stressed that if he (counsel for the applicant) has, in fact, acted inappropriately and has inadvertently contravened the specifics of the deemed undertaking rule, then counsel should be held accountable for that, not the applicant. There has been no prejudice in any of this for the respondents, but denying the applicant “his day in court” would be extremely unfair.

ANALYSIS AND DECISION

23In order to address this RFOP and issue an oral decision, I considered the following issues:

• Was the applicant’s disclosure of information a contravention of the Tribunal’s rules and of the common law rule of deemed undertaking?

• Was the disclosure of information to the OHRC the same as disclosure to the general public?

• Did this disclosure create prejudice for the respondent and does it affect the respondent’s ability to respond fully and have a fair hearing?

24Any litigation, whether before a court or a Tribunal, may involve pre-hearing oral and/or documentary discovery. This process may involve a significant intrusion on the parties’ right to privacy. If the opposing party seeks information that is relevant and is not protected by privilege, it must be disclosed, no matter how potentially embarrassing, or confidential. That is what occurred in this case through an order of the Tribunal requiring disclosure of arguably relevant information.

25As a corollary to this obligation, the courts and the Rules of this Tribunal have recognized that the party that is forced to disclose the information must be afforded some measure of protection. Hence, one of the purposes of the implied undertaking rule is to preserve an individual’s right to privacy subject to the needs of the litigation.

26This Tribunal orders the disclosure of arguably relevant documents by the parties, and states in Rule 3.3 that “parties and their representatives may not use documents disclosed under these Rules for any purpose other than in the proceeding before the Tribunal.”

27Although the OHRC is an independent body, the Code, in s. 37(2), gives the Commission the right to intervene in any proceeding before this Tribunal. The process by which the OHRC can intervene pursuant to their statutory right is set out in Rule 11.6 of this Tribunal. Where the applicant has not consented to such intervention, Rule 11.7 sets out the process. There is no precedent for the Tribunal denying the OHRC intervenor status, when requested. Thus, disclosure of information to the OHRC with the consent of the applicant, in my opinion, does not contravene Rule 3.3 or the deemed undertaking rule. It is not the same as disclosure to the general public or the media would have been. The OHRC has a unique status within the human rights process and thus it differs from the status accorded to other intervenors. Its involvement is effectively a part of the proceedings before the Tribunal. The fact that the OHRC has not sought intervenor status in this case does not alter this fact.

28In any case, the information that was disclosed to the OHRC was not the detailed information disclosed by the respondents, i.e., the list of anonymized names and the coloured photographs, but the summary data information developed by the applicant’s witness, namely Exhibit A29.

29It is important to note that the materials that contain potentially sensitive information, namely the list of anonymized initials and coloured photographs disclosed by the respondents in response to the May 12, 2015 Interim Decision, were entered into evidence on June 24, 2015. I note the comments of counsel for the respondents that, in her opinion, this was done purely for the purposes of identifying the documents and not for the purposes of being considered as actual evidence. However, this distinction was not made at that time.

30It was clear to me and should have been clear to the respondents that the applicant would use the information for the stated purposes of attempting to link the data to the applicant’s allegations. The development of the document entered into evidence as Exhibit A29, based on the above information, i.e., evidence before the Tribunal, is clearly linked to the proceedings before the Tribunal. Therefore, this further supports the fact that there was no contravention of Rule 3.3.

31Further, regarding the respondents’ request that Exhibit A29 be excluded and the applicants be denied the right to rely on its contents, I stated that the sharing of this document, Exhibit A29, with the OHRC has not created any prejudice for the respondents. They will be able to cross-examine the witness, Ms. Haneef-Jabari, as well as present their case to me. It will be up to me to determine, based on the evidence of both parties, how relevant this information is to determine whether the applicant’s rights have been violated or not.

32I informed the parties that I am denying the respondents’ request to dismiss the Application on the grounds of abuse of process. I further stated that I am denying their request to prevent the applicant from relying on Exhibit A29 in presenting his case. I stated that the interests of justice and the importance of ensuring that the applicant has a fair hearing outweigh the merits of the respondents’ request in this regard.

33I informed the parties that the hearing will resume immediately.

34In response to a further request from the respondents, which was not opposed by the applicant, I agreed that, in accordance with the Tribunal’s Rule 3.11, I would make an order that the detailed personal information relating to students other than the applicant, i.e., the anonymized lists of initials, letters and related coloured photographs, entered into evidence as R5, R6, R7 and R8, be protected and not be made available to the general public or the media, as part of the Tribunal file.

ORDER

35The respondents’ request to dismiss the Application as an abuse of process is hereby denied. Their alternative request to preclude the applicant from relying on the disclosure provided by the respondents, as a result of the May 12, 2015 Interim Decision, is also denied.

36In accordance with Tribunal Rule 3.11, the data disclosed by the respondents, containing the anonymized lists of initials, letters and coloured photographs and marked as Exhibits R5, R6, R7 and R8, are to be protected within the Tribunal’s file and deemed as private information, not for public disclosure.