H.S. v. The Private Academy, 2016 HRTO 1308

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

H.S. Applicant

-and-

The Private Academy Respondent

A N D B E T W E E N:

S.S. Applicant

-and-

The Private Academy Respondent

A N D B E T W E E N:

N.S. by his litigation guardian S.S. Applicant

-and-

The Private Academy Respondent

INTERIM DECISION

Adjudicator: Jennifer Khurana Date: October 7, 2016 Citation: 2016 HRTO 1308 Indexed as: H.S. v. The Private Academy

WRITTEN SUBMISSIONS

H.S., S.S. and N.S., represented by his litigation guardian, S.S., Applicants Self-represented

The Private Academy, Respondent Albertos Polizogopoulos, Counsel

1These are three Applications filed under section 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 sex and association with a person identified by a prohibited ground.

2The applicants, H.S. and S.S., are a same-sex married couple who are parents (“the parents”) of the applicant N.S. (“the child”). The parents wished to enroll the child in the respondent school, which is a privately-owned and operated Christian school. The parents allege that the child was denied the opportunity to be admitted to the respondent’s preschool program because of their status as a same-sex married couple.

3This Interim Decision determines, among other things, a number of the applicants’ requests. It also addresses the respondent’s request for a court reporter at the upcoming hearing.

BACKGROUND

4The applicants filed a Request for Order During Proceedings (“Request”) seeking, among other things, an order for production by the respondent of a number of documents. The applicants also request that the Tribunal remove documents filed by the respondent from its record and that it order some of these materials to be destroyed.

5The applicants filed another Request seeking to amend their Application, requesting that the Tribunal order all materials related to these proceedings be sealed, and that the hearing be closed to the public.

The applicants' requests for production

6The applicants requested production of several documents prior to mediation and also in correspondence to the respondent. They seek production of the following 7 categories of documents:

1. A copy of all application forms completed and signed by parents/guardians who have now or ever had a child or children enrolled at the Private Academy;

2. The name, address, phone number, email address or any known contact information for all past and present board members, administrators, staff and parents/guardians whether their application was accepted or not;

3. Evidence including, but not limited to, copies of letters or emails, that others have been denied an application, the reason the denial occurred, and contact information for any and all individuals who were refused an opportunity to apply;

4. Evidence that anyone has ever been expelled, and contact information for any and all individuals whose children were expelled;

5. A copy of course curriculum and/or course material, along with an indication of grade level used, to teach about sexuality, marriage and/or abortion;

6. A list of which topics the Private Academy considers “subjects that raise denominational controversy” as described in its Handbook; and

7. A copy of the form “Notice of Intention to Reapply”.

7The respondent opposes the production of several of the documents but did disclose some of the requested materials, some of which were produced in redacted form.

Categories 1 and 2

8The applicants submit that the views of other parents are relevant to establishing the degree to which the parents’ creeds coincide with one another. They argue that the respondent projected a more inclusive and tolerant image of itself and that the school’s failure to assure that the creed of its members was aligned with every tenet of the school’s internally reported creed implies that the respondent cannot benefit from the protection afforded by section 18 of the Code. The respondent submits that these documents are not relevant, and that there are privacy and confidentiality concerns related to production of the application forms.

9It is well-established that a party seeking production of documents must demonstrate that the information is “arguably relevant” to the proceeding and, if the requested information triggers concerns regarding privacy or privilege, that any such interests in confidentiality are outweighed by principles of fairness. See McKay v. Toronto Police Service Board, 2009 HRTO 1220.

10The requesting party has the onus of establishing that documents are arguably relevant. While “arguable relevance” may not be a high onus, there must be a link between the materials that are sought and the allegations made in an application. A link may be established if the information requested could be used to prove or disprove a fact or issue in dispute or provides an inferential link to support a theory of the case or line of defence. See McKay, above, at para. 13.

11The applicants’ request for disclosure of the items in Category 1 is denied. In my view the request is overly broad and is speculative. The applicants are merely hoping that obtaining the records and surveying parents about their beliefs will provide something useful to assist in the presentation of the case. They have not indicated a basis for their position that there could be a variation in beliefs among parents. I will not order production on this basis at this stage, and do not find the reasons provided by the applicants set out a sufficient foundation for the request. Further, the application forms do not include relevant information and consist of only contact and personal information about the family applying and a declaration the parent or guardian signs attesting to acceptance of Biblical content and teaching. The Tribunal has a mandate to adjudicate applications in a fair, just and expeditious manner. In considering requests for production the Tribunal must also apply the principles of proportionality. The Tribunal has consistently made clear that it will not grant production requests that are so broad as to amount to a “fishing expedition”. See Lawrence v. Chrysler Canada, 2014 HRTO 1434, and Gridin v. Integrated Technology Ltd., 2012 HRTO 389.

12The part of the applicants’ request in Category 2 that relates to any and all parents who have ever applied to the school is also denied for the same reasons.

13I agree that the information sought with respect to the school’s internal policies and adherence to its lifestyle requirements is relevant to the issues in dispute. However I find it overly broad to order production of contact information for all of the school’s past and present trustees, board members, staff and administrators. Since the applicants filed this Request, the respondent has provided its witness list which includes the principal of the school and the chair of the respondent Board of Directors, who was also a member of the Board at the time the parents contacted the school about the child’s admission. The applicants may cross-examine these individuals at the hearing about their internal policies and about the vetting process applied in approving new students.

14The respondent has disclosed the parent handbooks which include the policies on family values and lifestyle, but has not provided copies of any internal policies about the admission of students or information about the vetting process. To the extent that they exist, I find these internal documents to be arguably relevant and order them produced within 7 days of this Interim Decision.

Categories 3 and 4

15The respondent has already admitted that it has denied admission to certain students, provided the reasons for their denial and included the relevant materials in redacted form. I do not find it appropriate to order the production of unredacted copies or to disclose the identities of minors who were not admitted or in one case, who was expelled.

Categories 5 and 7

16The respondent already responded to the applicants’ request in Category 5 and provided the document requested in Category 7. I make no order with respect to these categories.

Category 6

17The applicants’ request is denied. The existence of some degree of “denominational controversy” or of the topics that generate that controversy is not relevant to the limited issue in dispute, namely, the respondent’s refusal to admit the child because the parents are in a same-sex relationship and its ability to rely on the protection of s.18. I do not find other denominational issues arguably relevant to determining that issue. If the applicants are interested in whether the respondent considers same-sex marriage to be part of this “denominational controversy” this can be addressed at the hearing, though the respondent appears to have already made explicit its position on this issue in its Reponses.

Applicants’ request to have documents removed from the record

18The applicants request that the 2013-2014 versions of two parent handbooks and information related to alternative school programs disclosed and filed by the respondents be removed from the Tribunal record.

19The parents submit that the 2013-2014 versions are irrelevant as they had inquired about the child attending the school for the 2014-2015 school year. The respondent attached the 2014-2015 versions of these handbooks to its Responses in error. While the events giving rise to the Applications occurred in May 2014, the respondent explained that the 2013-2014 handbooks were still in use at that time. The respondent does not oppose the applicants’ reference to the later version of the handbooks if they wish to do so, and has not sought to have the 2014-2015 versions removed from the record.

20The applicants’ requests are denied. I find no justification for removing the handbooks from the Tribunal’s record. If the applicants wish to argue that these handbooks are not relevant or were not in use in May of 2014 they may raise these issues at the hearing. The Tribunal’s file is a record of the materials that have been submitted to it. The fact that a document is in the Tribunal’s file does not mean that it is evidence before the Tribunal, that it is admissible evidence, or that it is taken into account by the adjudicator.

21I also deny the applicants’ request to remove the information related to alternative school programs. They submit this information is misleading and irrelevant as they contacted the respondent because it offered a Christian pre-school program and the information disclosed and filed by the respondent concerns secular programs.

22The respondent disputes the exclusion of these materials from the record and submits that the information is relevant to the proceedings because the applicants allege that there are no comparable preschool programs anywhere near them.

23The parties may make arguments about the relevance of these documents at the hearing and about the weight the Tribunal should place on these materials, if admitted.

Applicants’ request to remove and destroy documents disclosed by the respondent

24The applicants ask the Tribunal to remove a 691-page Facebook file disclosed by the respondent from its record as they argue it is irrelevant and reveals the child’s identity. The applicants submit that the document, disclosed through a Dropbox link, is the work product of the respondent’s counsel and consists of altered Facebook posts, including photos of the minor applicant and the child’s name. The applicants allege that respondent counsel engaged in “doxing” and that this practice creates serious danger to the applicants. The applicants submit the information is irrelevant and could result in harassment, abuse and potential harm to themselves and to their family and friends. They argue that respondent counsel’s actions constitute a threat of reprisal predicated on their discontinuing the Applications, and a gross abuse of process.

25The applicants request that the respondent be ordered to remove the document from Dropbox and any cloud servers, delete and/or shred any copies in its possession, request anyone to whom access has been given to the document to do the same, and that the respondent cease and desist accessing and creating files and/or distributing personally identifiable information about the applicants, their pets and family or friends that is not directly relevant to the respondent’s position in these proceedings.

26The respondent disputes that the Facebook materials have been altered or are the work product of their legal representative. The respondent also submits that the Facebook materials contain multiple posts which are relevant to the applicants’ credibility, including reference to the events giving rise to these proceedings. Further, the posts contain references to Christianity, marriage and sexuality, as well as the applicants’ financial status, which the respondent claims are all relevant in light of how the applicants have framed their claims. The respondent argues it disclosed these materials as it was required to do, as it may rely on them at the hearing.

27Finally, while the respondent acknowledges that the Facebook posts contain personal and identifiable information, it submits that if anyone is responsible for identifying the child and linking the child to these proceedings, it is one of the parents. The respondent confirms that it has not shared the document with anyone outside of these proceedings, has no interest in doing so, and that it has removed the link from Dropbox.

28The applicants’ requests with respect to the Facebook materials are denied at this time. On the basis of the information before me, it appears the information the applicants now seek to have removed from the record and destroyed is information one or both parents placed in the public domain. It also appears that the materials were not provided to anyone outside of these proceedings, and have been removed from Dropbox. Finally, there is no evidence before me to suggest that the respondent obtained the Facebook posts other than through a search of what one of the parents made publicly available, even if advertently, on Facebook or on her profile.

29As already noted above, the fact that a document has been submitted to the Tribunal does not mean that it is admissible evidence or that I will take it into account. If the applicants dispute the authenticity and/or relevance of some or all of the 691 pages submitted, they may identify the sections they do not believe should be admitted and make these arguments at the hearing.

30With respect to the applicants’ concerns about the sensitive nature of the information provided, I note that Rule 3.3 of the Tribunal’s Rules of Procedure provides that parties and their representatives may not use documents obtained under these Rules for any purpose other than in the proceeding before the Tribunal. I also recall that the interests of the child are to be taken into account in all circumstances. Depending on what is admitted in evidence at the hearing, I may require the respondent to anonymise or redact the postings and return a redacted copy to the Tribunal for the record.

Applicants’ request to amend the Application

31The parents request to amend their Applications to include the grounds of creed, family status and marital status. They also request to amend the child’s Application to include the ground of family status.

32The respondent does not oppose the request to amend, but submits that it was made just over a week prior to the deadline for the exchange and delivery to the Tribunal of witness statements and hearing documents. The respondent confirms that it does not require amended Responses if the Tribunal grants the applicants’ request to amend.

33In determining a request to amend a pleading, the Tribunal will generally consider a number of factors, including the stage at which the request to amend is made, the nature of the requested amendment, the conduct of the party seeking the amendment, the prejudice to the other party, and the impact on the course of the hearing. See Mancebo-Munoz v. NCO Financial Services Inc., 2013 HRTO 535; Dube v. Canadian Career College, 2008 HRTO 336; Wozenilek v. 7-Eleven Canada, 2009 HRTO 926.

34I have considered the factors above and grant the request to amend the parents’ Applications to add the grounds of creed, family status and marital status and to amend the child’s Application to include the ground of family status. The applicants are not seeking to add a new set of allegations relying on a different set of facts, and are merely presenting alternative characterizations of the discrimination alleged in the Applications. However, in light of the timing of the request, if the respondent wishes to amend its witness list and/or witness statements to address the new grounds of alleged discrimination, it may do so within 14 days of this Interim Decision.

35The amendment is made without any determination by the Tribunal as to the merits of the allegations and without prejudice to any position the respondent may wish to take regarding these allegations.

Applicants’ request to have the proceedings closed to the public and that the Tribunal record be sealed

36In their most recent Request, the applicants seek an order from the Tribunal that all materials submitted as part of these proceedings be sealed, and that the hearing be closed to the public, including reporters. The parents argue that they could be the subject of stereotyping and that the child could be exposed to potential psychological and physical harm. They argue this harm could extend to the respondent, its students and parents. The applicants do not appear to request a publication ban as they cite a ban’s potential ineffectiveness in preventing the spread of personal information and comments, particularly on the Internet.

37The respondents take no position on the request but question the need for these measures in light of the anonymization of the style of cause. They note that the applicants' concerns appear to be focused on how the Applications are dealt with in the media and in legal databases such as.

38The applicants’ request for closed proceedings is denied. As the applicants acknowledge in their request, closed proceedings are a major departure from the principles of open and transparent justice. On the basis of the information before me, I do not find such a measure warranted in this case. As the Tribunal noted in C.M. v. York Region District School Board, 2009 HRTO 735 at paragraph 20,

An open justice system is a fundamental principle of a free and democratic society, so that the actions of those responsible for interpreting and enforcing the law may be subject to public scrutiny. Moreover, the principles enshrined in the Code are quasi-constitutional rights which are recognized as particularly significant in Canadian society. It is important for there to be public scrutiny when respondents found to have violated these rights and also when accusations of discrimination are made by applicants but not upheld. ….Effective public scrutiny of this human rights system depends, in part, upon knowing how the Tribunal addresses the particularly parties before it. Openness and free expression are of fundamental importance in our legal and human rights systems.

39This case involves the interests of a minor, and the style of cause and all decisions are already anonymized. Great care will be taken in any decision to ensure that the child’s identity is not revealed. I recognise that unlike adult litigants, a child does not make decisions for herself or himself about an Application. The decisions to commence an Application, what evidence to call and arguments to make, and whether to settle, to name just a few, are usually made on his or her behalf by a parent or guardian. I have considered the privacy concerns involving the applicant child in this case and grant the applicants’ request for a sealing order. Tribunal materials may be accessed by the public, for example through freedom of information requests, and I find it appropriate to grant the request to seal the Tribunal’s record of proceedings. All materials in the Tribunal’s file are part of the Tribunal’s record of proceedings, however they will not be made available to the public or distributed to any person (except the parties and their legal counsel), without further order of the Tribunal.

40While I deny the applicants’ request to hold in camera proceedings, as a further measure of protection in the interests of minors, I order that any party to the proceedings or any observers of the proceedings not disclose or publish the names of any of the children referred to in the documentary or oral evidence or the names of the child’s parents or litigation guardian.

The respondent’s request for a court reporter

41The respondent contacted the Registrar and requested the use of a court reporter at the upcoming hearing in this matter. The applicants did not respond to this request.

42The Tribunal’s Practice Direction on Recording Hearings states that while the Tribunal may permit a party to have a court reporter, the practice is discouraged because it may lead to more formality, cause delay and many parties lack the financial resources to obtain a court reporter or order a transcript. The Practice Direction provides that when a court reporter is permitted, the party who obtains the court reporter must normally have transcripts of the recording produced and provided to the parties at its own expense. This requirement can be waived by the Tribunal and the transcript normally forms part of the Tribunal’s record.

43I grant the respondent’s request to allow a court reporter, at its own expense, to record the hearing, with certain conditions. Should the respondent decide to use a court reporter, it must confirm its intentions in writing with the Tribunal, copied to the applicants. The respondent will also be required to have a transcript of the recording prepared at its expense and must share copies with the Tribunal and the applicants within a reasonable period of time after the conclusion of the hearing. I will decide on an appropriate deadline for the preparation and sharing of these transcripts at the hearing.

44Any recording or transcription may not be publicized or used for any purpose other than in the proceeding before the Tribunal, must only identify the child or the parents by the initials used in the style of cause, and must not report names of other children or their parents.

MEDIATION-ADJUDICATION

45Rule 15A of the Tribunal’s Rules provides that the parties may agree to participate in mediation/adjudication on the scheduled hearing date. At the outset of the hearing, the assigned hearing adjudicator, with the consent of the parties, may engage in discussions with the parties to try and resolve the matter before proceeding with the party. In such circumstances, the mediator may continue to hear the matter as adjudicator.

46If the parties are interested in attempting to settle the case through mediation-adjudication before the Tribunal starts hearing evidence on November 14, 2016, they should advise the Tribunal of such an interest either prior to or at the outset of the hearing. They may also always engage in settlement discussions on their own prior to the scheduled hearing date.

ORDER

47The Tribunal orders:

a. The applicant’s production requests are denied;

b. The respondent is required to produce copies of internal admission policies or information about its vetting process of applications for its pre-school program within 7 days of this Interim Decision or to confirm in writing to the applicant and to the Tribunal that this information does not exist;

c. The applicants’ requests to remove documents from the record and to have materials destroyed is denied;

d. The applicants’ request to amend Applications 2014-18590-I and 2014-18591-I to include the grounds of creed, marital status and family status is granted;

e. The applicants’ request to amend Application 2014-18592-I to include the ground of family status is granted;

f. If the respondent wishes to amend its witness list and/or witness statements to address the amended Applications, it must do so within 14 days of this Interim Decision;

g. The applicants’ request to order proceedings closed is denied;

h. The applicants’ request to seal the record is granted. All pleadings and documents in the Tribunal’s file for these Applications will be sealed and will not be available to the public or distributed to any person (except the parties and their legal counsel), without further order of the Tribunal;

i. Any party to the proceedings or any observers of the proceedings must not disclose or publish the names of any of the children referred to in the documentary or oral evidence.

j. The respondent’s request to use a court reporter is granted, subject to the conditions set out in paragraphs [43] and [44] above.