S.L v. York Region District School Board, 2015 HRTO 1642

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

J.L by his litigation guardian S.L.

Applicant

-and-

York Region District School Board

Respondent

INTERIM DECISION

Adjudicator: Brian Cook

Date: December 3, 2015

Citation: 2015 HRTO 1642

Indexed as: S.L v. York Region District School Board

APPEARANCES

J.L by his litigation guardian S.L., Applicant

Self-represented

York Region District School Board, Respondent

Kathryn J. Bird, Counsel

1This Application alleges discrimination with respect to education because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision addresses the respondent’s request that it be permitted to access the applicant’s Ontario Student Record (“OSR”) in order to prepare its Response to the Application. I will refer to the litigation guardian for the minor applicant as the applicant throughout this decision.

2The Application was filed on January 12, 2015. The respondent asked for an extension of time to file a Response which was granted. On May 21, 2015, the respondent filed a Request for Order During Proceedings asking that the applicant be directed to provide written consent to the use and disclosure of documents from the applicant’s OSR in order to allow the respondent to file a Response. The respondent also sought access to a psycho-educational assessment and related documents.

3The applicant filed a Response to the Request for Order During Proceedings. He argued that while the respondents could access the OSR, he objected to counsel for the respondent also accessing the OSR.

4In a Case Assessment Direction dated June 15, 2015, I concluded:

In this case, I am satisfied that it is necessary that the respondent be permitted to access the applicant’s OSR in order to properly respond to the Application.

The applicant’s submissions suggest that disclosure to the respondent’s counsel will somehow violate the applicant's privacy rights. When a party retains counsel to represent it, counsel represents that party. Counsel are subject to the same restrictions in regard to disclosure of any documents that the party would be subject to.

To be clear on this point, I will direct that the respondent and respondent’s counsel may use the applicant's OSR that is disclosed in regard to the Application only for the purposes of the Application.

5The respondent’s request for access to medical records was denied as being premature. The applicant was directed to advise if he consents to the disclosure of the OSR. If he did not consent he was directed to provide submissions on why the Application should not be dismissed as an abuse of process.

6The applicant filed submissions in which he noted that the Tribunal has found requests for access to an OSR in the early stages of an Application to be premature. He cited C.M. v. Toronto Catholic School Board, 2012 HRTO 2307 which stated, at paragraph 10:

The Tribunal has dealt with a number of instances in which a respondent has requested disclosure of a student’s OSR. Unlike other cases at this Tribunal where a respondent’s request for permission to use and disclose the OSR have been found to be premature (See Campbell v. Toronto District School Board, 2010 HRTO 463) this matter is proceeding to a scheduled hearing and as such the respondent’s request is timely.

7In that case, the Vice-chair note that it was not clear if the applicant was in fact objecting to disclosure of the OSR. The applicant was instructed to clarify her position. The Vice-chair stated, at paragraph 20:

If the applicant’s next friend is of the view that some of the documents in the OSR related to these two school years are not arguably relevant to the issues in dispute and that her consent should be accordingly limited, she should provide detailed and specific submissions in support. If the applicant does not grant permission, the Tribunal will consider whether the Application should proceed and may seek submissions on whether it should be dismissed as an abuse of process.

8In Campbell v. Toronto District School Board, 2010 HRTO 463, the case mentioned in C.M., the Vice-chair said at paragraph 12 - 13:

In this case, the request for written permission to access the OSR is being made at an early stage of the Tribunal’s processes. The parties’ obligations to disclose arguably relevant documents have not yet been triggered. In the normal course, if a hearing is scheduled, the applicant will be under an obligation to disclose all arguably relevant documents, which may well include the OSR or parts of it. In the present case, the underlying issue in the Request before me is whether the respondents are presently able to comply with their obligation under the Rules to respond to the Application. Under Rule 8.2, a Response is described as follows:

A complete Response must provide the information requested in each section of the Form 2, respond to each allegation set out in the Application and must also include any additional facts and allegations on which the respondent relies...

Based on the material before me, it would appear that only some of the allegations made in the Application involve matters for which there may be related records in the OSR. In addition, it would appear that the respondents would be able to provide a Response to the allegations through consulting with the various individuals involved. Further, it would appear that while the applicant has objected to the Request, she has also made it clear that her position may change once she obtains a copy and has an opportunity to review the same. In the circumstances, I do not find it appropriate at this stage to make any determination regarding access and disclosure of documents and records in the OSR. This is consistent with the Tribunal’s general approach regarding disclosure and exchange of documentation where in general, there is no obligation to exchange arguably relevant documents among the parties until a hearing date is confirmed.

9In the present case, I understood from the applicant’s submissions that, as in Campbell and C.M., the applicant might agree to give his consent for disclosure after he reviewed the OSR. In a Case Assessment Direction dated July 6, 2015, I directed the respondent to contact the applicant to try to resolve the problem of access and disclosure of the OSR and to advise the Tribunal if the parties could not resolve the problem.

10On July 7, 2015, the respondent’s counsel filed a Request for Order During Proceedings asking that the Application be dismissed as an abuse of process because the applicant had not provided consent to access the OSR. The Request for Order During Proceedings reiterated the respondent’s view that the nature of the allegations require the respondent to be able to review and refer to documents in the OSR in order to respond to the Application.

11The applicant responded to this Request for Order During Proceedings and reiterated his view that it is premature for the respondent to seek access to the OSR at this stage of the process. He referred again to the cases noted above.

12In a Case Assessment Direction dated July 30, 2015, I directed that a telephone conference call hearing be scheduled to deal with the following issues:

1. What is the applicant's objection to the respondent referring to the OSR which is in the respondent’s [possession] in this case?

2. Why does the respondent need to refer to the OSR in order to file a Response?

3. Should the Application be dismissed as an abuse of process if the applicant continues to refuse to allow the respondent to refer to the OSR?

4. Any other issues that the parties may wish to raise in regards to this Application.

13The conference call hearing was scheduled for November 30, 2015. The applicant appeared and so did the respondent’s counsel.

14At the hearing, the applicant stated that he had not looked at the OSR. He indicated that he was first told by the school principal that he could not look at it. He then was told that he could look at it but he declined to do so. He said the reason for this is that he did not want to suggest that the respondent should be able to look at the OSR.

15The applicant said that he accepts that the authorized officials of the School Board can look at the OSR. However, in his view, the respondent’s counsel should not be permitted to look at it.

16The respondent’s counsel advised that her firm has a strict protocol for what to do when they obtain access to a student OSR in the course of litigation. She said that only a paper copy is retained and it is not added to the electronic file. The paper copy is stored in a locked cabinet and access to it is controlled.

17The respondent’s counsel further noted that under the rules governing lawyers and client-lawyer privilege, she is not legally permitted to disclose the contents of the OSR other than in regards to the litigation in which it arose.

18The applicant agreed that at some point in the process he would be obliged to give consent to allow the respondent to access the OSR but he argued that the Tribunal’s cases have said that this disclosure need only be made at a later stage in the process and is not necessarily required for a respondent to file a Response.

Analysis

19The Application in this case alleges that the applicant's academic progress was hindered by a failure to properly accommodate a disability. The OSR clearly contains documents that are not only relevant, but essential to an understanding of the nature of the accommodations that were provided, whether the academic progress was in fact hindered, what accommodations were provided, and whether they were appropriate.

20As the applicant concedes, for this reason, access to the OSR will be necessary if the Application is to proceed. The issue at this point seems to be whether access is necessary in order to allow the respondent to file a Response.

21The applicant suggests that the respondents could rely on other information that would be sufficient for the preparation of a Response. The respondent’s position is that it could not provide a meaningful Response without referring to the OSR.

22The purpose of a Response is to allow the respondent to respond to allegations in the Application. A full and detailed Response is very valuable in the Tribunal’s process. First, it allows the applicant to better understand the respondent’s explanations for what has happened. Second, filing an Application is the start of a litigation process and a respondent is entitled to provide a full legal response to the Application. A full and detailed Response allows the Tribunal to better understand the issues in dispute and to process the Application with that knowledge. It can be very helpful to the parties and the Tribunal during settlement discussions at mediation, where the majority of Applications do in fact settle.

23The OSR is a somewhat unique document. It is privileged and its uses are limited by section 266 of the Education Act, RSO 1990, c E.2:

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, teachers and designated early childhood educators of the school for the improvement of instruction and other education 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.

24The OSR is nevertheless a record that is in the physical control of the school board. It is not, therefore, a record that the respondent would like the applicant to disclose so it can see it. It is a document that the respondent refers to on a regular basis in the process of providing education services to students and their families and is the repository for information about a student’s academic progress and accommodation issues. It is therefore the record that contains the documents that the respondent needs to refer to if it is to make a meaningful and full Response in a case such as this.

25The OSR is therefore a relevant document and in the absence of exceptional circumstances, it is a document that will necessarily have to be referred to in the processing and hearing of an Application that includes allegations of a failure to accommodate a student or allegations that relate to a student’s academic progress.

26In my view, when an Application includes allegations of a failure to accommodate a student or allegations that relate to a student’s academic progress, in the absence of exceptional circumstances, there is no principled reason for an applicant to withhold consent to allow the respondent to access the OSR so that it can provide a full Response to the Application.

27As noted, it may be appropriate for the applicant to have an opportunity to review the OSR to help the applicant to determine whether there are any exceptional circumstances or valid objections to disclosure of some of the records in the OSR. In this case, the applicant had that opportunity but declined to look at the OSR.

28The only reason advanced by the applicant for not giving his consent is his belief that he is not required to do so, based on his interpretation of prior Tribunal cases. Although previous cases have found that disclosure of the OSR at the pleading stage is premature, for the reasons noted above, in this case, where the allegations relate to the nature of the accommodation that was or was not provided and the applicant's academic progress, creating a distinction so that a respondent can rely on the OSR at a hearing but not at the point it prepares its Response is neither helpful nor appropriate.

29The applicant also appears to have a misconception about the role of counsel as he appears to suggest that he would give consent if the respondent was not represented by counsel. As noted, counsel is bound by the same restrictions that bind the school board with respect to access and use of the OSR.

DECISION

30By December 11, 2015, the applicant shall advise if he gives consent to the respondent to allow it to access the applicant’s OSR for the purpose of responding to the Application. If the applicant has not done so, the Application may be dismissed as an abuse of process.