Noah Tsehai v. Durham District School Board, 2015 HRTO 616

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: May 12, 2015

Citation: 2015 HRTO 616

Indexed as: Tsehai v. Durham District School Board

WRITTEN SUBMISSIONS

Noah Tsehai, Applicant

Osborne G. Barnwell, Counsel

Durham District School Board, John Bowyer, Andrea Pemberton, 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.

2The applicant identified as black within the school system. In 2008 he was identified as an exceptional student with a learning disability by the school board's Identification Placement Review Committee ("IPRC"). In the Application, the applicant alleged that he received a series of unfair and inappropriate suspensions without the school board taking into account or considering the mitigating factor of his identified learning disability. He alleged that he was marginalized and administered harsher discipline than some other students because of his race and his disability. Further, that his special education placement in locally developed courses and in the Supervised Alternative Learning ("SAL") program was discriminatory because of his disability and/or his age. In an Interim Decision, dated October 10, 2013, the Tribunal agreed to expand the scope of the Application by adding reprisal to the alleged grounds.

3In an Interim Decision, dated January 6, 2014, the Tribunal agreed to add three individuals, who are employees of the organizational respondent, as individual respondents, due to the allegation that they violated the Code in their treatment of the applicant by exceeding the scope of their employment duties by targeting the applicant for unjust discipline and reprisal.

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

5This Interim Decision is in response to the applicant's Form 10 Request for an Order during Proceedings ("RFOP"), submitted to the Tribunal on April 7, 2015.

6On April 17, 2015, the respondent submitted its Form 11 response to this RFOP.

7On May 1, 2015, the applicant submitted his reply to the respondents' Form 11 response, reiterating the previously filed production requests.

The Applicant's Request for Order

6The applicant has requested the disclosure of the following documents by the respondent school board:

• Copies of all of the applicant's suspensions, letters providing notice of discipline and Safe School reports, including, but limited to material setting out the context in which the discipline was imposed from 2008 to 2013;
• Copies of yearbooks from Williamsburg Elementary School from 2008 to 2010;
• Coloured photos of Williamsburg Elementary School students with a Behaviour Safety Plan from 2008 to 2010;
• Coloured photos of Williamsburg Elementary School students suspended from 2008 to 2010 on the basis of opposition to authority, assault, engaging in or encouraging a fight and swearing with letters providing notice of discipline and any Principal and Safe Schools reports, including, but not limited to material setting out the context in which the discipline was imposed;
• Copies of yearbooks from Donald A. Wilson from 2010 to 2013;
• Coloured photos of Donald A. Wilson students with a Behaviour Safety Plan from 2010 to 2013;
• Coloured photos of each student suspended and/or expelled from Donald A. Wilson from 2009 to 2013 on the basis of opposition to authority, assault, engaging in or encouraging a fight and swearing with letters providing notice of discipline and any Principal and Safe Schools reports, including, but not limited to material setting out the context in which the discipline was imposed;
• Coloured photos of Durham District School Board's Whitby students placed in the Behaviour Intervention Centre ("BIC") alternative program from 2008 to 2013;
• Coloured photos of students placed in locally developed and applied streams from 2009 to 2013 noting exceptionality;
• The methodology and findings of the racial data collected by Supervising Officer Doug Crichton pertaining to Donald A. Wilson;
• All communication summaries and documentation including, but not limited to, submissions to the Ministry of Education, pre-SAL procedures, written and verbal instruction and direction to Warren Palmer and Andrea Pemberton with respect to the applicant's placement in the SAL program in 2012;
• All communication summaries including, but not limited to, meetings, written and verbal instruction, direction and expressed behavioural concerns expressed and/or provided to Educational Assistant Carol Thickett regarding the applicant; and
• Copies of all consideration forms as per the Mediation Agreement.

The Respondent's Response to the RFOP

7The respondents submitted that the RFOP should be denied on the basis that the request is untimely and would be an abuse of process. They stated that the requested documents and information are largely beyond the scope of the Application and are not arguably relevant to any of the material issues between the parties. They further stated that the information and documents requested do not contain any probative value when considered without context or expert evidence.

8I am going to address the respondent's responses point by point in the following paragraphs.

Re the matter of timeliness of the RFOP

9The respondents reviewed the sequence of events since this Application has been initially submitted to the Tribunal, including the series of Case Assessment Directions ("CAD") and Interim Decisions regarding compliance with the Tribunal's Rules.

10Both parties cited the CAD dated January 6, 2014 in their submissions which stated that the request for certain productions by the applicant in November 2013 was premature. That CAD stated that the applicant may renew his request and that the Tribunal will consider and rule on the production request if and when it is renewed.

11The respondents argue that if the applicant had wished to renew that request, it should have been done long ago and certainly before the hearing began on February 19, 2015. They claim that allowing this request to go forward at this late stage is an abuse of the Tribunal's process.

The potential burden on the respondents

12The respondents submit that the production of the documents requested would place an onerous burden on them. They submitted that it would take at least a minimum of 40 hours to create and compile the requested documents and would be unfair on them at this late stage. They urged the Tribunal to deny the request on the grounds that it would be prejudicial to the respondents.

Specific responses to the applicant's requests

13The respondents' alternate submission is that the Tribunal should deny the applicant's request on the following additional grounds:

• The information has already been provided;
• The respondent does not collect the information requested and the Tribunal does not have the power to order the production of information that is not in the possession of the respondent;
• The information is beyond the scope of the Application;
• The applicant does not have standing to allege systemic discrimination;
• The information relating to students other than the applicant is confidential and subject to statutory privilege;
• The release of the information would infringe on the privacy of third parties to the Application; and
• The probative value of disclosure is outweighed by the potential prejudice.

14The respondents' submissions provided detailed information, including legal submissions, for each of these points. It is not my intention to reproduce these in this Interim Decision, but shall make reference to them as appropriate.

Analysis and Reasons for the Decision

15In considering the applicant's request for the production of documents, I am guided by several Tribunal Rules. These include (in no specific order):

• Rule 16, which sets out the requirements for the disclosure of arguably relevant documents and the timetable for disclosure;
• Rule 16, which also states that parties are expected to disclose a list of arguably relevant documents in their possession; and
• Rules 3.3 and 3.11, which focus on the importance of protecting privacy in an open Tribunal process and allows for an order for the protection of confidentiality of personal or sensitive information, as appropriate. This is linked to the Tribunal's Practice Direction on the Anonymization of Decisions;
• Rule 1.7 (p) which states that the Tribunal may require a party or other person to produce any document, information or thing and to provide such assistance as is reasonably necessary, including using any data storage, processing or retrieval device or system, to produce the information in any form; and
• Rule A3.1(c) which states that the rules and procedures of the Tribunal shall be liberally and purposively interpreted and applied to ensure that procedures, orders and directions are proportionate to the importance and complexity of the issues in the proceeding.

Regarding timeliness of the RFOP

16I understand the respondents' concerns about the timeliness of the RFOP. The period of elapsed time between the Interim Decision that stated that the production request was premature, and the date when this RFOP was filed was beyond the expected period that is in accordance with the Tribunal's Rules.

17There were reasons for the late filing of this RFOP. Since the Application was initially filed with the Tribunal, the applicant has reached the age where he is able to instruct counsel on his own behalf rather than through a Litigation Guardian. The applicant has also changed counsel. I accept that these factors mitigate the abuse of process claimed by the respondents.

18I note that the allegations contained in the initial Application, followed by the request to amend the Application have not changed. The respondents were aware from the references contained in the Application, the December 20, 2011 Minutes of Settlement, signed by both parties, and the earlier RFOP that the applicant alleged that black students face harsher discipline than others and was looking for information to support that allegation. Therefore, the applicant's further request for supporting documentation on this point was not unexpected.

19Requesting the information that was deemed premature previously on a later date, but two months before the hearing resumes, does not seem to me prejudicial to the respondents nor do I believe that the production request represents a significant or undue burden for the respondents.

20While the respondents are technically correct that the hearing had begun in February, there had been no opening statements or any witness evidence presented so far. Therefore, the production requests are neither prejudicial to the respondents nor result in an abuse of process on those grounds.

21I note the respondents' reference to several previous Tribunal decisions, where the Tribunal expressed concern about the timing of the request risking the derailing of a just and expeditious process such as Lampi v. Princess House Products Inc., 2008 HRTO 1 at para 10, as well as Harrypersad v. Peel District School Board, 2013 HRTO 55 at para 9. I do not believe that this decision requiring further production will create such jeopardy for the parties.

Regarding the temporal scope of the Application

22As mentioned above, the parties participated in mediation and on December 20, 2011, signed Minutes of Settlement, which contained a specific release clause. This was cited in the Interim Decision, dated October 10, 2013, as follows:

I find that all allegations contained in the applicant's September 2013 letter are subject to the full and final release signed by the parties. I also find that all of the allegations contained in the Application that pre-date December 20, 2011 are subject to the release. In my view, it would be an abuse of process to permit the applicant to proceed with these allegations. (N.T. by his next friend D.B. v. Durham District School Board, 2015 HRTO 1715 at para 2)

23This decision clearly held that allegations that predate December 11, 2011 are subject to a full and final release and that the applicant cannot proceed with these allegations. Therefore, I dismiss the applicant's request for the production of all information that predates December 20, 2011. That includes all the specified information related to Williamsburg Elementary School and its students, including the applicant.

Regarding the disclosure of documents that the respondents may not have in their possession

24The applicant has requested a number of documents which the respondents claim they do not have. Requested documents include coloured photographs of students at Donald A. Wilson S.S., who, during the two school years that are within the temporal scope of this Application, were suspended, who had a Behaviour Safety Plan and who were in locally developed or applied level courses.

25The respondents argue that they do not collect information about their students in this format and that such information, even if available retroactively, would require parental consent and a great deal of effort on the board's part. I accept that students who are not parties to this proceeding are entitled to be protected from public disclosure of their identity and their past involvement in discipline proceedings or participation in special programs, as resident pupils of the respondent school board. I also accept that school boards do not routinely have such specific documents in their possession.

26However, I also accept the applicant's argument that the information that this would provide to the Tribunal is arguably relevant in determining whether the applicant's allegations regarding the link between race, 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.

27I would expect that the school would still have its yearbooks from the two specified school years and would still know which students met the criteria for having a Behaviour Safety Plan, had been suspended and participated in locally developed courses at that time. Given that the request covers one secondary school, the numbers are not likely to be very large, some of the students would still be at the school and the Board would still have the Ontario Student Records of those students who had graduated or left school. Therefore, relying on the precedent in B.C. v. Durham Catholic District School Board 2011 HRTO 2062, I direct that the school board produce the following information for disclosure:

• A list of students at Donald A. Wilson S.S. with a Behaviour Safety Plan during the school years 2011/12 and 2012/2013;
• A list of all students suspended and/or expelled from Donald A. Wilson S.S. during the school years 2011/12 to 2012/2013 on the basis of opposition to authority, assault, engaging in or encouraging a fight and swearing, together with letters providing notice of discipline and any Principal and Safe Schools reports including, but not limited to, material setting out the context in which the discipline was imposed;
• A list of students at Donald A. Wilson S.S. placed in the BIC alternative program during the school years 2011/12 and 2012/2013;
• A list of students at Donald A. Wilson S.S. placed in locally developed and applied streams during the school years 2011/12 and 2012/2013, noting exceptionality;
• for each of these students, the school board shall provide a photograph from the yearbooks for the specified school years, or a colour photo if available in the respondents' possession, with each student's initials or non-identifying designation that matches the student's name on the above lists.

28In order to protect the privacy of these students, the names are to be redacted and replaced with initials or some other non-identifying designation. In that way, the respondent school board does not have to obtain the students' or their parents' consent to the disclosure.

29I also order the school board to disclose the school's yearbooks for those two years, in order to provide context for the above information.

30I rely on the parties to respect the privacy of all students and protect all sensitive information from public disclosure, in compliance with the Tribunal's Rules relating to privacy and confidentiality, Rules 3.3 and 3.11.

Regarding the respondent's statement that the requested information has already been provided

31The respondents submit that they had already disclosed the following:

• Copies of all of the applicant's suspensions, letters providing notice of discipline and Safe School reports, including but limited to material setting out the context in which the discipline was imposed from 2008 to 2013;
• All communication summaries and documentation including, but not limited to, submissions to the Ministry of Education, pre-SAL procedures, written and verbal instruction and direction to Warren Palmer and Andrea Pemberton with respect to the applicant's placement in the SAL program in 2012;
• All communication summaries including, but not limited to, meetings, written and verbal instruction, direction and expressed behavioural concerns expressed and/or provided to Educational Assistant Carol Thickett regarding the applicant; and
• Copies of all consideration forms as per the Mediation Agreement.

32On reviewing the respondents' disclosure materials, I note that some of this material has indeed been disclosed, but not all of it. Therefore, I agree to the applicant's request for the disclosure of suspension letters and related relevant documentation addressed to his parents and/or others as well as any communication related to the applicant sent to the Ministry of Education, after the above specified date of December 20, 2011.

33In the numerous "email chains" submitted, I have not seen the specific references to instructions and directions to Warren Palmer, Andrea Pemberton and Carol Thickett, as referenced by the applicant. I agree with the applicant that these are arguably relevant to the Application, since Mr. Palmer and Ms. Pemberton are individual witnesses whose conduct and communication with one another and other staff may be key to the allegations in the Application and the amended Application relating to reprisal, and to the reasons on the basis of which the individual respondents were added to the Application. Ms. Thickett is a witness who is expected to give evidence about instructions that she had received relating to the applicant. Therefore, these should be disclosed.

34The respondent's disclosure includes numerous consideration forms, as requested by the applicant. Therefore, this request had indeed been satisfied.

Regarding the matter of systemic discrimination referred to by the respondent and the establishment of context for the allegations

35The respondent submitted that the applicant should not be allowed to rely on a claim of systemic discrimination nor does he have standing to allege systemic discrimination on behalf of non-parties. They argue that the requested information has little or no probative value for the applicant's allegations.

36The applicant has not specifically referred to systemic discrimination in this RFOP. However, the issue before me is whether the materials requested by the applicant are arguably relevant to the allegation that the applicant had been treated unjustly because of his colour and disability. The request for photos of other students who have been suspended or placed in certain programs by the respondent school board may be arguably relevant to establishing a context for his allegations, through the use of systemic or pattern evidence. That should not be surprising to the respondents, since the apparent targeting of black students with exceptionalities and a reference to systemic discrimination were included in the Minutes of Settlement of December 20, 2011. It is clear that the principal issue before this Tribunal is whether the respondent discriminated against the applicant on the grounds of race, disability, age and reprisal and whether the applicant's disabilities were applied and/or considered appropriately as mitigating factors in the respondent's disciplinary actions. However, this is fundamentally a circumstantial evidence case, and I am satisfied that the disclosure of the materials requested by the applicant regarding other students in the relevant academic years who had a Behaviour Safety Plan, had been suspended, were involved in a the BIC program and/or were in locally developed courses in the relevant academic years is arguably relevant to the Tribunal's determination of the issue as to whether the Tribunal is able to draw an inference of discrimination against the individual applicant.

Regarding the applicant's request for Superintendent Crichton's "racial data" report

37The respondents did not reply to or comment on the production request for this report. It is not clear from the applicant's RFOP exactly what this report is or what it contains.

38In the May 1, 2015 reply submission, the applicant "refers" the Tribunal to a 2011 report apparently presented to the school board regarding the matter of student safety and racism. The applicant has not requested disclosure of this report nor has he explained the reasons why this report might be arguably relevant to the Tribunal. It is implied, though not explicitly stated, that the "racial data" report, referred to by the applicant arose from or was in response to this school board report. On the basis of the information provided, I deny the applicant's request for the production of this report at this time, although the applicant may renew his request for disclosure of this material by filing a further Request for Order together with submissions regarding the nature of these reports and how they are arguably relevant to the issues raised in this proceeding.

Regarding the matter of special education placement and course selection at the secondary level by exceptionality

39The school board should be able to provide data on the special education placement of students, as determined by the IPRC, on the basis of their exceptionality, including their participation in academic, applied and locally developed courses. This information should be available at any school, without having to look in the Ontario Student Records of individual students. Such information is routinely available to the trustees of the school board, its Special Education Advisory Committee and is included in the board's annual report to the Ministry of Education. Therefore, it can be disclosed without jeopardizing the privacy of any individual student.

40The respondent school board is directed to provide this information for the Donald A. Wilson S.S. for the specified school years. If, however, it is easier to provide the specified information for the whole school board, that information would also be acceptable.

Regarding the parties' request for how the Tribunal deals with the RFOP

41The applicant requested that I deal with this matter in writing. The respondent requested an oral hearing or teleconference. I see no particular need for an oral hearing or teleconference at this time. If after receiving this Interim decision the parties wish to request a teleconference with me and with one another, they may approach the Registrar.

ORDER

42I order the respondent Durham District School Board to disclose the following documents to the applicant and the Tribunal no later than June 2, 2015, which is three weeks before the hearing resumes:

• Copies of all of the applicant's suspension decisions, letters providing notice of discipline and Safe School reports including, but limited to, material setting out the context in which the discipline was imposed from the end of December 2011 to the end of the school year in 2013;
• An anonymized list of students at Donald A. Wilson S.S. with a Behaviour Safety Plan during the school years 2011/12 and 2012/2013;
• An anonymized list of all students suspended and/or expelled from Donald A. Wilson S.S. during the school years 2011/12 to 2012/2013 on the basis of opposition to authority, assault, engaging in or encouraging a fight and swearing, together with letters providing notice of discipline and any Principal and Safe Schools reports, including but not limited to material setting out the context in which the discipline was imposed;
• An anonymized list of students at Donald A. Wilson S.S. placed in the Behaviour Intervention Centre (BIC) alternative program during the school years 2011/12 and 2012/2013;
• An anonymized list of students at Donald A. Wilson S.S. placed in locally developed and applied streams during the school years 2011/12 and 2012/2013, noting exceptionality;
• For each of these students, a photograph from the yearbooks for the specified school years, or a colour photo if available in the respondents' possession, with each student's initials or non-identifying designation that matches the student's name on the above lists.
• copies of yearbooks from Donald A. Wilson S. S. for the 2011/12 and 2012/13 school years;
• data regarding the exceptionality, special education placement and course selection, i.e., advanced, applied or locally developed, of the identified exceptional students at Donald A. Wilson S.S. between 2011 and 2013;
• all communication summaries and documentation including, but not limited to, submissions to the Ministry of Education, pre-SAL procedures, written and verbal instruction and direction to Warren Palmer and Andrea Pemberton with respect to the applicant's placement in the SAL program in 2012;
• all communication summaries including, but not limited to, meetings, written and verbal instruction, direction and expressed behavioural concerns expressed and/or provided to Educational Assistant Carol Thickett regarding the applicant.