CHILD AND FAMILY SERVICES REVIEW BOARD
BETWEEN:
RO and EO Appellants
-and-
Algoma District School Board Respondents
DECISION
Adjudicator: Eva Nichols Date: February 25, 2022 Citation: 2022 CFSRB 10 Indexed As: RO and EO v Algoma District School Board
Introduction
1This Decision addresses the appellants’ request that the Child and Family Services Review Board (“the Board”) waive its standard confidentiality requirement and allow the appellants to disclose Decision, SS21-0006, dated February 15, 2022, for the limited purpose of appealing a decision made by Hockey Canada’s local entity, the Sault Major Hockey Association Inc., to ban their son from playing hockey for at least the balance of the 2021/2022 season or perhaps for an even longer period.
2The decisions issued by the Board are anonymized. What that means is that the names of the appellants (the parents), their child, who is the subject of the appeal and any other individuals, whether they are minors or not, are either included by their initials or are referred to in anonymized manner and are not named. For example, school principals involved in the expulsion process are not named, but are referred to as “the Principal”. The expelled student is usually referred to as the Pupil, while any other students involved are cited as Student A or Student B, etc.
3In addition to that, every Decision issued by the Board carries a confidentiality clause as follows:
“Pursuant to Rules 9.3 and 9.4 of the CFSRB’s Rules of Procedure, parties and their representatives must not use, share, discuss or disclose any CFSRB documents or decisions, or any other documents or information provided or used in this Decision, with anyone including through the media or online. The CFSRB prohibits the use of any of this information for any purpose outside of the CFSRB’s proceedings, except with an order of the Court or the CFSRB, as appropriate.”
4Although there is no confidentiality order or publication ban mandated by the statute that governs and directs the activities of the CFSRB under section 311.7 of the Education Act, R.S.O. 1990, c. E2, as amended, the Statutory Powers Procedure Act, R.S.O.1990, c. S22, as amended, allows the Board to make such an order for confidentiality. The purpose of this step by the CFSRB is to guarantee the protection of minors who are the subjects of the Board’s proceedings.
5I note that the Board’s other enabling statute the Child, Youth, and Family Services Act, S.O. 2017, amended in 2020, assures the protection of the personal information of parties and thereby assures the confidentiality of the CFSRB’s decisions. Disclosure of those decisions requires a court order.
6Under the well-established “open court principle” and in accordance with the Supreme Court’s recent decision in Sherman Estate v. Donovan 2021 SCC 25, I recognize that the courts set a very high bar before ordering a sealing order, i.e., preventing the disclosure of personal information about a party. While I find that minor children are entitled to the protection of their personal and/or sensitive information to a greater extent than adults, in this instance it is the parents of the child in question who are seeking the release of this information. Additionally, the parents are requesting nothing more than a redacted version of the Order, which contains no personal information.
7Therefore, I find that waiving the confidentiality order to enable the parents, who initiated the appeal to the Board and who want to use the Decision to overturn a different but also negative decision relating to their child, is appropriate in this case.
background
8On January 25, 2022, the Board issued the following order in this case:
a) The School Board’s decision to expel the pupil from all schools of the School Board is quashed.
b) The pupil may return to school on the first day of the second semester of the 2021/2022 school year. The pupil may return to any school of the School Board in accordance with his parents’ wishes, including the school where he was in attendance prior to the expulsion.
c) The record of the expulsion is to be expunged from the pupil’s Ontario Student record (“OSR”) and all other related documents, related to the expulsion and held by the School Board, shall be accordingly amended.
d) Reasons for this Order will follow in a written decision within 30 days of the hearing day and no later than February 21, 2022.”
9In the Decision, the Board also referenced the decision of the hockey league to suspend LO from playing hockey at para.41.
10Following receipt of the Decision on February 16, 2022, counsel for the appellants wrote to the Board stating that the appellants intend to appeal the hockey league’s decision and wish to be allowed to file a copy of the Decision with the hockey league on a confidential basis. This email was not copied to the school board that expelled the pupil.
11Counsel stated the following regarding the anticipated process:
The appeal is being made in accordance with the bylaws of Hockey Canada, that are operative by way of Hockey Canada’s incorporation under the Canada Not-for-Profit Corporations Act, S.C. 2009, c.23.
The confidentiality provisions of the bylaws of Hockey Canada can be found at Article 12 of the Bylaws which state the following:
CONFIDENTIALITY AND ACCESS
12Member National Associations will keep all data obtained based on their access to the System strictly confidential and will take all reasonable measures and apply the highest degree of care in order to guarantee at all times complete confidentiality. Furthermore, MNAs will access the System and use the confidential information stored on it, exclusively for the purpose of executing Player Transfers in which they are directly involved.
13Member National Associations will ensure that only authorized users have access to the System. Furthermore, MNAs will select, instruct and control the authorized users with the highest possible care.
14Player data stored on the System is the joint property of the IIHF and the Player’s Home MNA, and may not be used for any non-Transfer related purposes without the prior express written consent of the Home MNA and the IIHF.
Regarding the status of the school attended by the student LO
15The bylaws of Hockey Canada address the status of the school that LO attends, which is one of many Hockey Canada Accredited Schools. As a result of the CFSRB Decision, LO has now been able to return to his school. The expulsion should have been or shortly will be expunged from his Ontario Student Record.
16However, it would appear from the above cited by-laws that until LO’s suspension by the Hockey Federation is reversed, even if he is back in school, his participation in the hockey program, which is an integral and key part of his education at this school, is in abeyance.
17Therefore, in order to enable LO to not only attend school, in accordance with the CFSRB Decision, but also to participate in the hockey program, which is a major part of his school program, it is acceptable for the CFSRB to allow its Decision to be disclosed to the Hockey Federation.
18I accept counsel’s assurance that the Hockey Federation will honour its own confidentiality provisions by limiting the dissemination of the Decision and the disclosure of any of the information regarding the student LO as well as of the events which led to his expulsion by the school board.
19Although I have noted that the request has not been provided to the school board and the Board has not received the school board’s submissions on the matter, I am conscious of the timeline apparently imposed on the family for appealing the pupil’s suspension from hockey. I am also aware that the Decision does not name any of the personnel involved at the school board in the expulsion process, although in the current circumstances and given the school’s involvement in the hockey program, the appeal committee at the hockey league will be able to identify the principal.
20I trust that the confidentiality rules of the Hockey League will ensure that the individuals who will make the decision about the pupil’s suspension from playing hockey will honour and comply with those confidentiality provisions. Therefore, I am prepared to agree to this request without inviting and considering submissions from the school board.
21As a result, based on the appellant parents’ wishes and their counsel’s assurances regarding confidentiality, as well as the urgency of this matter in light of the timelines set for the appeal process, namely that
a) the Decision will not be provided to anyone within Hockey Canada beyond the members of the appeal committee; and
b) the name of the appellants and of their son as well as the names of any of the school board personnel who may be identified from the Decision will only be provided to the members of the appeal committee on an as needed basis and who will be asked and expected to keep all such information confidential,
22I agree to waive the confidentiality clause of the Decision and agree to allow the appellants to use the Decision for the purposes of the stated appeal.
Dated at Toronto, February 25, 2022.
Eva Nichols
Eva Nichols.
Member