A.H. v. Toronto District School Board, 2015 HRTO 261

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

A.H.

Applicant

-and-

Toronto District School Board

Respondent

INTERIM DECISION

Adjudicator: Jennifer Scott

Date: March 5, 2015

Citation: 2015 HRTO 261

Indexed as: A.H. v. Toronto District School Board

WRITTEN SUBMISSIONS

A.H., Applicant

Self-represented

Toronto District School Board, Respondent

Gail Geronimo, Counsel

Introduction

1This Application alleges discrimination with respect to services because of family status, marital status and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). More specifically, the applicant alleges that she was discriminated against when the principal of her children’s former school offered winter clothing for her children and when she reprised against the applicant by contacting the children’s aid society, after the applicant complained about the principal’s actions.

2This Application is scheduled for a hearing on April 1 and 2, 2015.

3Requests for Orders During Proceedings have been filed by the parties. This Interim Decision addresses those requests and provides further directions.

adjournment request

4The applicant has requested an adjournment of the hearing because she is involved in an ongoing criminal case and requires time to recoup mentally. The respondent opposes the adjournment request.

5The Tribunal’s practice is to grant adjournments only in exceptional circumstances. The applicant has failed to establish the exceptional circumstances necessary to grant an adjournment as there is no indication that the applicant is unable to attend the hearing on April 1 and 2, 2015. It is for this reason that the adjournment request is denied. The hearing will proceed as scheduled.

PRODUCTION OF DOCUMENTS

6The respondent requests the following:

a. Production of the applicant’s arguably relevant documents;

b. Production of any documents contained in the Ontario Student Records (“OSRs”) for the applicant’s children that attended Edgewood Public School pertaining to the respondent’s professional services department, a children’s aid society, and any documents containing information that reasonably relates to section 37(2) and 72 of the Child and Family Services Act (child protection).

c. The applicant’s consent to permit the respondent to use and disclose documents in the OSRs at the hearing.

7It is well-established that a party seeking production of documents must demonstrate the information is “arguably relevant” to the proceeding. In order to establish “arguable relevance”, a party must show that there is a nexus between the sought-after material and the subject-matter of the Application.

Arguably Relevant Documents

8The applicant has produced the report of the Children’s Aid Society of Toronto dated December 18, 2013. The applicant has advised that she has no other arguably relevant documents.

Ontario Student Records

9The respondent has requested the following documents from the OSRs of the applicant’s four children who attended Edgewood Public School: (a) documents relating to the respondent’s professional services; (b) documents relating to a children’s aid society; and (c) documents relating to child protection concerns. The respondent does not seek access to the children’s entire OSRs.

10A student’s OSR is privileged under section 266 of the Education Act, R.S.O. 1990, c. E.2, which reads 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, 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.

11Although OSRs are privileged by statute, the respondent has the right to make full answer and defence to the allegations of discrimination set out in the Application. In my view, the respondent is entitled to have access to and rely upon the records that it has sought in the OSRs.

12The Tribunal directs the applicant to provide her written permission to the respondent to obtain documents in the OSRs that relate to the respondent’s professional services, child protection concerns or a children’s aid society, and to use these documents at the hearing.

13In the event that the applicant does not provide her written permission, the Tribunal will determine at the hearing whether to proceed with this Application would amount to an abuse of the Tribunal’s process. See Campbell v. Toronto District School Board, 2010 HRTO 463, and G.A. v. York Region District School Board, 2011 HRTO 2110.

Child Protection Documents

14The respondent seeks production of documents relating to child protection matters involving the applicant’s children, either in the hands of a children’s aid society or the court. It is unclear to me how these third party documents are arguably relevant to the issues before me when this information was not in the possession of the respondent at the time of the events in this Application. I decline to order this production.

order

15By March 12, 2015, the applicant must provide her written permission to allow the respondent to access the OSRs of the applicant’s children who attended Edgewood Public School and to obtain copies of any documents relating to the respondent’s professional services, child protection concerns, or a children’s aid society and to use such documents at the hearing.

directions

16By March 12, 2015, the applicant must provide a list of the witnesses that she intends to call at the hearing and witness statements describing what the witnesses will say when they testify. If the applicant is the only witness testifying and if she intends to testify about the facts already contained in the Application, it is sufficient for her to confirm this in writing by March 12, 2015. The applicant has provided her hearing documents and no further production order is made.

17By March 23, 2015, the respondent must provide:

a. a list of the witnesses it intends to call at the hearing of the Application;

b. witness statements describing what the witnesses will say when they testify; and

c. copies of the documents it intends to rely upon at the hearing.

18The hearing will commence on April 1, 2015.

19The parties are advised of the Tribunal’s mediation/adjudication process set out in Rule 15A of the Tribunal’s Rules of Procedure. A copy of the Tribunal’s mediation/adjudication agreement is attached to this Interim Decision for the parties’ review. The Tribunal will offer this process at the commencement of the hearing on April 1, 2015. If the parties agree, the hearing will start with mediation/adjudication. If they do not agree, the hearing will commence with the applicant’s evidence.