H.M. v. Durham District School Board, 2017 HRTO 1316

Human Rights Tribunal of Ontario

Between:

H.M. as represented by their Litigation Guardian G.M. Applicant

-and-

Durham District School Board Respondent

Interim Decision

Adjudicator: Jennifer Scott Date: October 5, 2017 Citation: 2017 HRTO 1316 Indexed as: H.M. v. Durham District School Board

Written Submissions

H.M. as represented by their Litigation Guardian G.M., Applicant Mark Donald, Counsel

Durham District School Board, Respondent Kathryn Bird, Counsel

Introduction

1This Application is proceeding to a hearing on November 14, 2017.

2On August 24, 2017, the respondent filed a Request for Order During Proceedings seeking the following:

a. An order that Student X’s OSR be produced;

b. An order that Student X be given notice of the proceedings and the opportunity to participate;

c. An order that all of the Tribunal’s Orders and Decisions that arise out of this Application be anonymized; and

d. An order that all pleadings and documents in the Tribunal’s file be sealed and not form part of the record.

3The applicant consents to the production of Student X’s OSR and opposes the remaining relief sought by the respondent.

4By Case Assessment Directed dated September 12, 2017, I directed the respondent to provide notice of its RFOP to Student X by September 18, 2017. Student X was given until September 25, 2017, to respond to the RFOP. On September 25, 2017, the Tribunal was advised through respondent’s counsel that Student X’s family consents to the disclosure of Student X’s OSR.

Decision

Production

5The threshold for production of documents before the Tribunal is arguable relevance and the party seeking production must demonstrate a nexus between the information or documents sought and the issues in dispute. The Tribunal has found a student’s OSR is arguably relevant to an application by a student alleging discrimination in the provision of educational services by a school board.

6In this case, the respondent school board wishes to defend the allegations of discrimination set out in the Application by relying upon the interplay between the accommodations required by Student X and the accommodations required by the applicant in order for both students to receive meaningful access to education from the respondent. I agree with the respondent that the OSR of Student X is arguably relevant to these issues.

7That said, OSRs are privileged documents under section 266(2) of the Education Act. Student X is not a party to these proceedings. Given the personal and sensitive information contained in Student X’s OSR, any documents admitted into evidence from Student X’s OSR will be sealed. Sealing orders are granted only in rare circumstances where there is an “overriding need to protect the applicant’s privacy interests”. Exceptional circumstances exist in this case. See S.D. v. Grand River Hospital, 2010 HRTO 1653 at para. 6.

Notice to Student X

8The respondent seeks an order giving Student X notice of these proceedings. Student X was given notice of the respondent’s RFOP and the September 12, 2017 Case Assessment Direction. The Case Assessment Direction identified the central issue in the Application. As such, Student X has been given notice of this proceeding; nothing further is required from the Tribunal.

Anonymization

9The Tribunal’s Rules of Procedure (Rule 3.11.1) and its Practice Direction on Anonymization of HRTO Decisions state the Tribunal will use initials in its decisions to identify children under the age of 18 and the next friend of children under 18. The Tribunal will follow its standard practice in this case. Initials will be used for the litigation guardian and all minor children.

10It is premature, in my view, to order that initials be used for all witnesses. There is no evidence before me at this stage in the proceedings that witnesses must be anonymized in order to protect the identity of the minor children.

Sealing of the Tribunal’s file

11I have made an order to seal any documents that are filed into evidence from the OSR of Student X. I decline to make an order that the entire record in this proceeding be sealed. In my view, anonymization of the applicant’s name, the litigation guardian and other minor children will adequately protect the privacy interests of minors.

Order

12The family of Student X has consented to the disclosure of Student X‘s OSR. In light of this consent, an order of the Tribunal may no longer be required. If it is, the OSR of Student X is ordered disclosed. Any documents filed into evidence from Student X’s OSR will be sealed.

13There is no order required regarding the anonymization of minors because the Tribunal’s standard practice is to anonymize minors in its decisions.

Directions

14This hearing is proceeding on November 14, 2017. On September 28, 2017, the applicant requested 14 summonses. In reviewing the very brief witness statements filed by the applicant, many of the witnesses are employees of the respondent and most of the evidence appears to relate to the behaviour of Student X and the impact of that behaviour on the applicant.

15On November 14, 2017, I would like to hear the evidence of the applicant’s primary witness, who can testify about the applicant, the events that gave rise to the Application, and the impact of those events on the applicant. I note the applicant has not filed a witness statement for the Litigation Guardian and it is therefore unclear to me who will be the applicant’s primary witness.

16The applicant is directed to advise the Tribunal of the identity of the applicant’s primary witness by October 12, 2017, and a summons will be issued for that witness. A detailed witness statement for that witness must be provided to the respondent and filed with the Tribunal by October 20, 2017.

17Following the evidence of the applicant’s primary witness, further case management will be undertaken with respect to the remaining witnesses on the applicant’s witness list. For now, we will start with the applicant’s primary witness.