DG v. York Region District School Board, 2016 HRTO 1216

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

DG by his litigation guardian MG

Applicant

-and-

York Region District School Board and Sonia Sahota

Respondents

INTERIM DECISION

Adjudicator: Jennifer Khurana
Date: September 15, 2016
Citation: 2016 HRTO 1216
Indexed as: DG v York Region District School Board

WRITTEN SUBMISSIONS

DG by his litigation guardian MG, Applicant

Self-represented

York Region District School Board and Sonia Sahota, Respondents

Kathryn Bird, Counsel

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The applicant, through his litigation guardian, alleges discrimination in the provision of education services on the basis of disability. In general, the applicant alleges that the respondents failed to accommodate his disability-related needs, disregarded psychological reports in his Ontario Student Record ("OSR"), and labelled the applicant as "mentally retarded".

2This Interim Decision determines a request filed by the respondent York Region District School Board (the "Board") for an order that it be permitted to access the applicant's OSR in order to prepare its Response to the Application. The Request is not filed on behalf of the individual respondent who is the school principal.

3The Application was filed on June 23, 2016 and the Tribunal sent notice of Application to the respondents on July 6, 2016. The Board requested consent from the litigation guardian to access the applicant's OSR on July 19, 2016. The litigation guardian did not object to Board counsel accessing the OSR, but asked that the Board provide the names of any other individuals who would access the OSR. On August 8, 2016, the Board filed a Request for Order During Proceedings ("Request") asking that the applicant's litigation guardian be directed to provide written consent to the disclosure of the applicant's OSR to the Board. The Board also asks the Tribunal to dismiss the Application for abuse of process if the applicant refuses to consent to the request. In the event that the applicant consents, the Board asks that it be granted 35 days from the date of production to file its Response to the Application.

4The applicant's litigation guardian filed a response to the Request asking the Tribunal to proceed with the Application in the absence of a Response due to the Board's delay in requesting consent to access the OSR. In the event that the Board is permitted to submit a Response, the litigation guardian asks the Tribunal to order the Board to identify those individuals who would access the OSR and to deny the Board's request for a further 35 days to file its Response.

DECISION

5For the reasons that follow, I find that the Board's requests should be granted. As the Application makes allegations about the respondents' failure to accommodate the applicant's disability, the OSR necessarily includes information about how the applicant was treated by the respondents, what accommodations were provided and whether they were appropriate. Accordingly, disclosure of the OSR is necessary to prepare a full Response to the allegations in the Application.

6The Board relies on E.A. v. Simcoe-Muskoka Catholic District School Board, 2013 HRTO 1335, L.B. v Toronto District School Board, 2014 HRTO 1747, S.L. v. York Region District School Board, 2015 HRTO 1642 and C.M. v. Toronto Catholic District School Board, 2012 HRTO 2307 and submits that an applicant's OSR is arguably relevant when the case involves a claim that the Board failed to accommodate the disability of the applicant or discriminate against the student through differential treatment. I agree. Although OSRs are privileged by statute, the nature of the allegations requires the Board to be able to review documents in the OSR in preparing its Response.

7The litigation guardian works in the education field. He submits that granting the Board access to his child's OSR will further compromise his professional standing and reputation at his place of employment because the respondents made negative comments about him which are part of the record. However, in filing the Application on behalf of the applicant, the litigation guardian commenced a legal proceeding and the Board has the right to make full answer and defence to the allegations of discrimination set out in the Application.

8I do not find that the 13 day delay cited by the litigation guardian constitutes an untimely request for consent to access the OSR, or that the timing of the Board's Request precludes its participation in this proceeding. The deadline for filing a Response to the Application was August 10, 2016 and the Board's Request was filed on August 8, 2016, only after the Board failed to obtain the litigation guardian's consent through several email exchanges.

9In the response to the Request, the applicant's litigation guardian submits that while he did not object to Board counsel accessing the OSR, he finds the proposed wording of the consent overly broad. I disagree. After the Board initially sought consent from the applicant's litigation guardian and he refused to provide it, the Board amended the consent to include only those within the Board for whom access is necessary in order to make full answer and defence to the Application. I find the language appropriate in the circumstances as it explicitly limits disclosure for the purposes of this Tribunal proceeding.

10The Tribunal directs the applicant's litigation guardian to provide written permission to the Board to provide documents in the OSR to those in the Board for whom access is necessary to make full answer and defence to this Application.

11In the event that the applicant's litigation guardian does not provide his written permission, the Tribunal may dismiss the Application as an abuse of the Tribunal's process.

ORDER

12The Tribunal orders:

a. Within 7 days of this Interim Decision, the applicant, through his litigation guardian, must advise the Tribunal and the respondent whether he consents to the disclosure of the OSR. If the litigation guardian does not respond, the Application may be dismissed as abandoned.

b. If the applicant gives his consent for the respondent Board to access the OSR, the respondent Board must file its Response within 35 days of receipt of the consent;

c. If the litigation guardian does not consent to disclosure, he must set out in writing within 7 days of this Interim Decision why he does not consent and why he believes the Application should not be dismissed as an abuse of process. The Tribunal will advise the respondents if it requires additional submissions before determining whether the Application should be dismissed as an abuse of process.

13I am not seized of this matter.