Ontario College of Teachers v Tudor, 2021 ONOCT 43

Discipline Committee of the Ontario College of Teachers

Citation: Ontario College of Teachers v Tudor, 2021 ONOCT 43 Date: 2021-02-25

Decision and Reasons on Motion

In the Matter of the Ontario College of Teachers Act, 1996 and the Regulation (Ontario Regulation 437/97) thereunder;

And in the Matter of a discipline proceeding against Ian Frederick Tudor, a member of the Ontario College of Teachers.

Between: Ontario College of Teachers – and – Ian Frederick Tudor (Registration #422146)

Panel: Mary Ellen Gucciardi, OCT, Chair Élaine Legault Jonathan Rose

Heard: December 7, 2020

Counsel: Andrew Matheson and Steven Chadwick, for the Ontario College of Teachers Jack Brown, for Ian Frederick Tudor Julie Maciura, Independent Legal Counsel

PUBLICATION BAN: Pursuant to subsections 32.1(3) and 32.1(4) of the Ontario College of Teachers Act, 1996, no person shall publish the identity of, or any information that could disclose the identity of any person who is under 18 years old and is a witness in a hearing or is the subject of evidence in a hearing or the identities of Student 1 and Student 2, being persons who were allegedly sexually abused or the subjects of the sexual misconduct or a prohibited act involving child pornography.

1On December 7, 2020, following the commencement of the hearing, Ian Frederick Tudor (the “Member”) brought a motion for the production of third party records before a panel of the Discipline Committee (the “Panel”) at the Ontario College of Teachers (the “College”). This decision sets out the Panel’s reasons with respect to the first stage of the legal test that is used to determine motions for production of third party records, as set out by the Supreme Court of Canada in R v. O’Connor.¹ In accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee (the “Committee Rules”), this proceeding was heard electronically.

2The Member attended the motion hearing and had legal representation.

3The Member’s motion is governed by section 12 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22 (“SPPA”) which provides that a member may seek production of information or documents in the possession of third parties that are relevant to the subject matter of the proceeding and admissible at the hearing. The Panel also relied on rule 7.03 of the Committee Rules regarding the production of documents.

A. Publication Ban

4The Panel ordered a publication ban pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996 (the “Act”), which makes such an order mandatory. Accordingly, no person shall publish the identity of, or any information that could disclose the identity of, any person who is under 18 years old and is a witness in a hearing or is the subject of evidence in a hearing.

5Additionally, a publication ban was ordered pursuant to subsection 32.1(4) of the Act at the request of College Counsel on behalf of Student 1 and Student 2 who were allegedly sexually abused, or the subjects of sexual misconduct or a prohibited act involving child pornography. Accordingly, no person shall publish the identities of, or any information that could disclose the identities of, Student 1 and Student 2.

B. The ALLEGATIONS

6The allegations against the Member in the Notice of Hearing dated February 27, 2019 (Exhibit 1) are as follows:

IT IS ALLEGED that Ian Frederick Tudor is guilty of professional misconduct as defined in the Act in that:

(a) he failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);

(b) he abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);

(c) he abused a student or students sexually, contrary to Ontario Regulation 437/97, subsection 1(7.3) and/or engaged in sexual abuse of a student or students as defined in section 1 of the Act;

(d) he engaged in sexual misconduct as defined in section 1 of the Act;

(e) he failed to comply with the Act or the regulations or the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);

(f) he failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically subsection 264(1) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15);

(g) he committed acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18);

(h) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS:

1. Ian Frederick Tudor is a member of the Ontario College of Teachers.

2. At all material times, the Member was employed by the Simcoe County District School Board as a secondary school teacher at [XXX] (the “School”) in, Ontario.

3. During the 2017 - 2018 academic year, Student 1 was a [XXX]-year-old female student in the Member’s Grade [XXX] class.

4. During the 2017 – 2018 academic year, Student 2 was a [XXX]-year-old female student in the Member’s Grade [XXX] class.

5. In or around October 2017, the Member engaged in inappropriate behaviour with Student 1 including, but not limited to:

(a) Standing close to Student 1 such that he made her feel uncomfortable;

(b) Touching Student 1 on the arm;

(c) Refusing to move away from Student 1 after being asked by Student 1 to do so.

6. In or around October 2017, the Member engaged in inappropriate behaviour with Student 2 including, but not limited to:

(a) Staring at Student 2’s chest;

(b) Brushing his hand against Student 2’s chest when assisting her on a computer at the School.

C. The MOTION

7Following the submission of the Notice of Hearing, the Member brought a motion for third party production of a children’s aid society investigation records and school board records related to two student witnesses in this hearing. The Member’s amended Notice of Motion dated December 2, 2020 provides the following:

THE MOTION IS FOR:

1. An Order for the Simcoe Muskoka Child Youth and Family Services (“Simcoe Muskoka Family Connexions”) to produce the 2017 investigation file regarding Mr. Ian Frederick Tudor, including all documents, records, and materials whatsoever.

2. An Order for the Simcoe County District School Board (“the Board”) to produce the Ontario Student Records for Student 1 and Student 2; the Individualized Education Plan (“IEP”) for Student 1; attendance records for Student 1 and Student 2 for the 2017/2018 academic year; and all records related to student support or referrals for support in respect of Student 1 and Student 2 during the 2017/2018 academic year.

3. An Order for the Simcoe County District School Board (“the Board”) to produce the contact information for Student 1 and Student 2.

THE GROUNDS FOR THE MOTION ARE:

4. The Member brings this motion pursuant to ss. 5.1, 5.3 and 12 of the Statutory Powers Procedure Act and rules 5.03(2) and 7.01(3) of the Rules of Procedure of the Discipline and Fitness to Practise Committees.

OVERVIEW

5. Mr. Tudor was employed as a teacher by the Simcoe County District School Board ("SCDSB" or "the Board") from 1998 until 2019, when he retired. He taught at [XXX] ("[XXX]," or "[XXX]") for the bulk of his career.

6. Student 2 was a student taught by Mr. Tudor during the 2017/2018 academic year.

7. In or around October 2017, Student 2 reported Mr. Tudor to the Board, alleging misconduct.

8. Student 2 complained that Mr. Tudor had brushed his hand against her chest while in the library at school and that Mr. Tudor had stared at her "chest."

9. On October 20, 2017, the Simcoe Muskoka Child Youth and Family Services ("Simcoe CAS") initiated an investigation into Student 2's complaint. The investigation concluded on November 17, 2017.

10. On January 18, 2018, CAS sent correspondence to Mr. Tudor and to the Board where it concluded that Simcoe CAS "does not verify harm or risk of likely harm," and closed their files.

11. Student 1 was a student taught by Mr. Tudor during the 2017/2018 academic year.

12. In or around October 2017, Student 1 reported Mr. Tudor to the Board, alleging misconduct.

13. Student 1 complained that Mr. Tudor had touched her arm; had stood too close; and had failed to move when asked.

14. Student 1 was interviewed by the Board on October 26, 2017.

15. On February 1, 2018, Mr. Tudor was given a letter of discipline and suspended for two days without pay. The discipline was grieved but litigation was not resolved prior to his retirement in 2019.

16. Following the February 1, 2018 discipline letter, the Board reported Mr. Tudor to the Ontario College of Teachers ("the College"), which began the present proceedings.

17. On or around January 29, 2020, this matter proceeded to a prehearing conference.

SCHOOL BOARD DOCUMENTS MISSING

18. The defence seeks missing documents from the Board that are authored or created by Board employees and relate to the student complainants, both of whom are listed as witnesses by the College in this Matter.

19. The College is relying upon the Simcoe County District School Board's investigation and witness interviews to support their case against the Member, Mr. Ian Tudor.

20. [Redacted by Member’s Counsel]

21. [Redacted by Member’s Counsel]

22. On or about October 1, 2020, the College advised the Member that the College would be calling both Student 1 and Student 2 as witnesses on the first day of hearing.

23. The Member requests an Order for production on the basis that these documents are necessary to provide the Member with all relevant information to ensure a fair hearing; to permit the Defence and Discipline Committee to have all relevant documents in their possession to assess witness credibility; to ensure the Member's ability to make full answer and defence; and to prevent an abuse of the College's process.

CHILDREN’S AID SOCIETY

24. The Defence seeks all records in possession of the Simcoe Muskoka Child Youth and Family Services relating to their investigation of the Member in relation to Student 2, and any other student, including all statements made by potential College witnesses to the Simcoe Muskoka Child Youth and Family Services.

25. Prior to January 2020, the College disclosed to the Member, that the Board had filed a report concerning the Member with Simcoe Muskoka Child Youth and Family Services in respect of the Member's conduct toward Student 2.

26. SMCYFS initiated its investigation on October 20, 2017 and concluded its investigation on November 17, 2017. It sent a letter to the Board on January 18, 2018, confirming it had ended its investigation.

27. Disclosure of statements made by College witnesses to SMCYFS are necessary for the Member to make full answer and defence to the allegations made against him. They are relevant to the assessment of these College witnesses' credibility. And further, a determination by the relevant children's aid society - as the SMCYFS is - about the merit of the complaints is arguably relevant to these proceedings.

CONTACT INFORMATION FOR KEY WITNESSES WITTHELD

28. The Defence seeks documents containing Student 1’s and Student 2's contact information, including telephone number, address, and emails.

29. These particulars have already been disclosed to the College by the Board but have been withheld from the Defence.

30. These documents are necessary for the Member to make full answer and defence.

D. SUBMISSIONS OF Member’s COUNSEL

8Member’s Counsel stated that the Notice of Hearing alleging professional misconduct against the Member contains allegations of sexual abuse of a student and sexual misconduct where, if the Panel found these allegations to be true on a balance of probabilities, a penalty of revocation of the Member’s certificate would apply. Given the seriousness of these allegations and the potential jeopardy and stigma that the Member faces in this hearing, Member’s Counsel submitted that the significance of the third party records being sought is high.

9The position of the Member is that there is a reasonable possibility that the records sought in this motion contain information that will be highly relevant to issues in this hearing, in particular the credibility of two of the College’s key witnesses, Student 1 and Student 2, and the reliability of the evidence that these two witnesses will give. Member’s Counsel submits that the information contained in the records requested may also include exculpatory evidence regarding the Member’s conduct through information regarding the unfolding of events underlying the allegations against the Member. Member’s Counsel asserted that the information that is likely to be contained in these records is directly implicated in the Member’s right to make full answer and defence.

10The Member reviewed the test for production of third party records set out in O’Connor, (the “O’Connor Test”).² Though the O’Connor Test was established in a criminal context, where the production of medical and counselling records was in question, the O’Connor Test also applies in disciplinary proceedings where a party wishes to compel third parties to produce documents through a Discipline Committee order. The O’Connor Test involves a two-stage process:

(1) The accused must demonstrate that the information contained in the records is likely to be relevant either to an issue in the proceedings or to the competence to testify of the person who is the subject of the records; and

(2) If likely relevance is established, the court must weigh the positive and negative consequences of production with a view to determining whether, and to what extent, production should be ordered.³

11In the first stage of the O’Connor Test, the onus is on the moving party to establish that the records being sought are “likely relevant” to an issue in the hearing. This information needs to satisfy the Panel “that there is actually in existence further material which may be useful to the [Member] in making full answer and defence, in the sense that it is logically probative.”⁴ Member’s Counsel elaborated that the question before the Panel is whether the requested records are likely to be relevant to a material issue in this proceeding, but also whether the evidence relates to the credibility of witnesses and to the reliability of other evidence in this matter.⁵ If the Panel agrees that likely relevance has been shown, the Panel would then order that records be produced to the Panel.

12Member’s Counsel argued that the Member’s request for the records described below has met the first threshold of “likely relevance” in the O’Connor Test. Therefore, it would be appropriate for the Panel to grant the Member’s request for production of the following records requested in the Member’s motion:

1. 2017 Investigation File of Simcoe Muskoka Child Youth and Family Services (“Simcoe CAS”);

2. IEP for Student 1 and Student Support Records for Student 1 and Student 2; and

3. Attendance Records for Student 1 and Student 2.

In addition to the above records, Member’s Counsel was also seeking the disclosure of Student 1 and Student 2’s contact information from College Counsel.

(1) 2017 Investigation File of Simcoe CAS

13First, Member’s Counsel requested production of the 2017 investigation file from Simcoe CAS, a children’s aid society. Member’s Counsel submitted that when Simcoe CAS examined the complaint made against the Member, a risk of harm to Student 2 was not verified. Though the conclusions of that investigation do not bind the Discipline Committee, these records contain very relevant information surrounding the incidents at issue in this hearing. Member’s Counsel argued that the contents of the investigation file are necessary for the Member to make full answer and defence as they likely contain prior statements from two primary witnesses, Student 1 and Student 2 describing the incidents at issue in this hearing. Statements made about these incidents by these witnesses during the Simcoe CAS investigation are also relevant to the Panel’s assessment of the credibility of these witnesses.

14Member’s Counsel argued that the threshold test of “likely relevance” for the production of these specific documents by third parties, as articulated in O’Connor, is met and asked the Panel to order production of the requested third party records for the Panel’s review.

(2) IEP for Student 1 and Student Support Records for Student 1 and Student 2

15Second, Member’s Counsel requested production of records contained in the Ontario Student Records (“OSRs”) for Student 1 and Student 2. Specifically, Member’s Counsel requested the Individual Education Plan (“IEP”) for Student 1, which the Member submits would establish the connection between Student 1’s accommodations under her IEP and the activities and responsibilities that were within the scope of the Member’s professional relationship with Student 1. Member’s Counsel submitted that he has reason to believe that there were a number of episodes where the Member attempted to discipline Student 1 or work with her through the IEP where she resisted the Member’s interventions and assistance. Member’s Counsel argued that the contents of the IEP would provide context for the type of assistance that the Member was providing to Student 1 and speak to the nature of their interactions, which is relevant to Student 1’s credibility as a witness against the Member.

16Member’s Counsel also requested access to student support records for Student 1 and Student 2 (i.e. reports of guidance counsellors, social workers and disciplinary records) that would apply to the 2017-2018 school year. These records will describe the actions of Student 1 and Student 2 during the material period when the alleged incidents took place and will likely show that there was an animus toward the Member by Student 1 and a history of poor relations between the Member and Student 1 and Student 2. This information would likely impact the credibility and the reliability of the students’ description of events that took place relating to the allegations against the Member. Member’s Counsel argued that the threshold test of “likely relevance” for the production of these specific documents by third parties, as articulated in R. v. O’Connor, is met and asked the Panel to order production of the requested third party records for the Panel’s review.

(3) Attendance Records for Student 1 and Student 2

17Third, Member’s Counsel requested production of the attendance records of Student 1 and Student 2 which he expects to show that at least one of the students did not regularly attend classes during the material period of the alleged incidents. Member’s Counsel argued that the two students’ attendance history during the 2017-2018 academic year may affect how the Panel assesses the Member’s interactions with at least one of the students.

(4) Disclosure of Student 1 and Student 2’s Contact Information from College Counsel

18In addition to the Member’s request for production of third party records, Member’s Counsel also requested that College Counsel disclose contact information for Student 1 and Student 2 to Member’s Counsel or, in the alternative, should College Counsel not disclose the contact information for Student 1 and Student 2, that the Panel order its production from the Board (as included at paragraph 3 of the Member’s Notice of Motion). Member’s Counsel submitted that College Counsel has previously refused to provide the contact information for Student 1 and Student 2. He argued that he should be able to contact these witnesses to see if they are willing to speak to him about this case, on the basis of the legal maxim that there is no property in a witness and that College Counsel may not act as a “gatekeeper to key witnesses.” Member’s Counsel proposed to undertake to keep the contact information confidential, except to himself and his law clerk.

E. POSITION of the BOARD

19John Dance, Associate Director and Superintendent of Human Resource Services, Simcoe County District School Board was contacted by Member’s Counsel to appear as a witness at the hearing. Mr. Dance appeared at the hearing but did not provide evidence to the Panel regarding the Member’s motion request to produce Student 1 and Student 2’s OSRs and contact information.

F. POSITION OF Simcoe CAS

20In a letter dated December 4, 2020, Ms. Karen O’Keefe, Senior Legal Counsel, Simcoe Muskoka Child Youth and Family Services, confirmed that the Simcoe CAS takes no position with respect to the production of its records in relation to its investigation of the Member in February 2017 (Exhibit C, Affidavit # 2 of Joanne Morton, Law Clerk, KNC Law).

G. SUBMISSIONS OF COLLEGE COUNSEL

21College Counsel noted that the College is not representing the two student witnesses (Student 1 or Student 2), whose privacy is implicated in the Member’s request for third party production. College Counsel’s role in this proceeding is to make submissions on the applicable law, rules and legal tests that apply in this motion.

22College Counsel opposed the Member’s motion on the basis that the requested third party records at issue are either irrelevant or privileged by law. College Counsel argued that the onus is on the Member to demonstrate that the records requested were ‘likely relevant’, which the Member has not established. With respect to the disclosure of Student 1’s and Student 2’s witness contact information requested by Member’s Counsel, College Counsel submitted that this information is private. However, College Counsel advised that if Member’s Counsel were to write a letter requesting that the student witnesses contact him, College Counsel would pass on the letter, allowing the witnesses to decide whether to communicate with Member’s Counsel or not.

(1) 2017 Investigation File of Simcoe CAS

23Regarding the investigation records of Simcoe CAS, College Counsel submitted that the request for production of the 2017 investigation is subject to the O’Connor Test. College Counsel argued that on the first step of the O’Connor analysis, the Member failed to satisfy the likely relevance threshold. The mere fact that Student 2 made statements about her allegations in confidential CAS records is not enough to meet the likely relevance test. The Member must show some basis that the statements made could affect witness credibility or provide the Member with added information of some impeachment value. College Counsel argued that Member’s Counsel provided only “boilerplate assertions” that the investigation file records are “relevant to the assessment of witnesses credibility” and necessary for the Member “to make full answer and defence.”

(2) IEP for Student 1 and Student Support Records for Student 1 and Student 2

24With regard to the request for production of the OSR records of Student 1 and Student 2, College Counsel argued that the Member is barred from seeking production of these records by statutory privilege. College Counsel argued that subsection 266(2) of the Education Act applies to OSRs and that any records contained in Student 1 and Student 2’s OSR are privileged. College Counsel further argued that the Supreme Court of Canada in R. v. McNeil⁶ determined that where privilege over documents is established, the O’Connor Test process does not apply, regardless of the relevance of documents. Consequently, College Counsel submitted that the OSRs of Student 1 and Student 2 ought not be produced.

25The Member’s motion seeks production of targeted documents within the OSRs: an IEP for Student 1, and records related to guidance and student support in respect of Student 1 and Student 2. College Counsel argued that statutory privilege protects these records because they are part of the OSR. To support this position, College Counsel referred the Panel to paragraph 27 of subsection 8(1) of the Education Act, which provides that the Minister of Education has powers to issue guidelines in respect of student records. Accordingly, College Counsel stated that The Ontario Student Record (OSR) Guideline, 2000 (Revised 2020) (the “Guideline”) published by the Ministry of Education, provides the Panel’s with a guide to help determine which documents are properly categorised as part of the OSR.

26College Counsel submitted that a panel of the Discipline Committee has previously made a similar determination in Ontario College of Teachers v. Bussineau,⁷ where the panel evaluated and denied a request for production of a student’s OSR documents on the basis that the contents of the OSR are protected by statutory privilege pursuant to subsection 266(2) of the Education Act. With this determination, the panel did not apply the two-step O’Connor analysis, following the Supreme Court of Canada’s decision in McNeil.⁸ College Counsel further submitted that guidance from the Ontario Court of Appeal about how the O’Connor Test should be applied is found in R. v. Batte⁹, which describes what is necessary to demonstrate that certain documents or records are likely relevant.

27Moreover, College Counsel submitted that the statutory privilege established over OSRs through the Education Act mirrors the high privacy interest in this type of personal information recognized in the criminal context, where courts have denied production requests for OSRs to prevent speculative and unmerited ‘fishing expeditions’ for evidence or information in this type of personal record.¹⁰ In McNeil, the Supreme Court of Canada has determined that it is inappropriate to compel production of a record where there is a well-founded claim to privilege “in all but the rarest cases where the accused’s innocence is at stake […]”.¹¹

(3) Attendance Records

28With respect to the daily attendance records for Student 1 and Student 2, College Counsel submitted that records regarding attendance in possession of the Board may not fall within the definition of the OSR, in which case they would not be privileged. Indeed, the Discipline Committee in Bussineau found that while information about student attendance is included in other components of a student’s OSR, classroom attendance records, which are created and maintained by teachers on a daily basis, exist outside of the OSR.

29College Counsel submitted that, even if the Panel were to find that the attendance records are not privileged (because they are not part of the OSR), the Member still failed to establish that the daily attendance records of Student 1 and Student 2 meet the “likely relevant” threshold at the first stage of the O’Connor Test. College Counsel argued that Member’s Counsel has failed to lead evidence to establish that there is a “reasonable possibility that the information is logically probative to an issue at trial or to the competence of a witness to testify.”¹² According to College Counsel, it is insufficient to merely submit that the daily attendance records may be useful in the defence of the Member. The College’s position was that seeking their production is a speculative and unmerited fishing expedition.

(4) Disclosure of Student 1 and Student 2’s Contact Information from College Counsel

30College Counsel submitted that the students’ contact information is private and that College Counsel is not at liberty to disclose it. College Counsel argued that since the articulation of the Stinchcombe¹³ test for firsthand disclosure in the criminal context, new criminal law reflects that it is no longer the case that privacy is irrelevant to disclosure of contact information. In keeping with the criminal law, College Counsel argued that privacy should be considered before ordering the disclosure of personal information in professional discipline proceedings as well. According to College Counsel, contact information is private information and the way to balance a party’s privacy interests with the interests of the Member is for Member’s Counsel to contact Student 1 and Student 2 through written correspondence. College Counsel explained that Member’s Counsel has been advised that if he were to write a letter requesting that Student 1 and Student 2 contact him, College Counsel would pass the letter on to Student 1 and Student 2, allowing Student 1 and Student 2 to choose whether or not to communicate with Member’s Counsel.

H. ADVICE FROM INDEPENDENT LEGAL COUNSEL

31Independent Legal Counsel advised the Panel that there is a legal obligation on College Counsel to disclose Student 1 and Student 2’s contact information. First, the request for this information is a disclosure issue and not a production issue, so the College’s obligations are much higher. In respect of the College’s proposal to forward correspondence to the witnesses, it would not appropriate for the College to be an intermediary between the witnesses and Member’s Counsel. Though it is an obligation for College Counsel to provide this information and Member’s Counsel is entitled to contact Student 1 and Student 2, whether these witnesses choose to speak to Member’s Counsel is up to them.

32Second, regarding the production issues, the Education Act, under subsection 266(2) makes clear that OSR records are privileged. Based on the submissions of College Counsel, the IEP is also clearly articulated as part of the OSR and is therefore also privileged. While the Panel may have to determine what elements of the other materials requested for production by Member’s Counsel comprise the OSR, the Discipline Committee’s decision in Bussineau affirms that the OSR is privileged at law, though student attendance records may be available outside the OSR. If the Panel determined that the attendance records are outside the OSR, the O’Connor analysis would apply, and the Panel would need to determine whether on the facts of this case these records are likely relevant. The O’Connor Test applies to documents where privilege has not been established. This is a contextual analysis. A general suggestion or assertion that records might be relevant or are likely relevant is not enough to meet the threshold of the legal test.

33Third, though records in the possession of a children’s aid society (like Simcoe CAS), have been ordered produced in previous cases, those prior orders are not determinative or binding on this Panel. The panel must apply the O’Connor Test to the particular facts of this case and conduct a contextualized, fact-based analysis to determine the propriety of ordering production for the first stage of the analysis. The Panel must look at the arguments provided by Member’s Counsel and the contents of the Notice of Hearing to determine if there is a fact-driven argument that demonstrates likely relevance. If so, those documents would be disclosed to the Panel, and, at the second stage, the Panel would consider the privacy interests of Student 1 and Student 2 and consider which, if any, documents should be released to the parties, and if so, whether any redactions need to be made to the documents that would be released.

I. DECISION ON MOTION

34For the reasons that follow, the Member’s motion for third party production of records is accepted, in part. The Panel orders that:

1. the Simcoe Muskoka Child Youth and Family Services (“Simcoe Muskoka Family Connexions”) produce to the Panel the 2017 investigation file regarding the Member, including all documents, records and materials;

2. the Simcoe County District School Board produce to the Panel the attendance records of Student 1 and Student 2 for the 2017-2018 academic year; the request for the production of the contents of the Ontario Student Records for Student 1 and Student 2 for the 2017-2018 academic year is denied;

3. College Counsel disclose the contact information for Student 1 and Student 2 to Member’s Counsel or his Clerk, on the condition that the contact information not be shared with the Member himself.

J. REASONS FOR DECISION

35As set out by the parties, the onus on this motion is on the Member to establish that the documents sought for production are “likely relevant” to an issue in the hearing. The Panel, in applying the first stage of the two-step O’Connor Test noted that the first stage of the inquiry “should not be interpreted as an onerous burden on the [Member]” and that the “onus upon the [Member] should be a low one” in a situation where a member is asked to call evidence with respect to the likely relevance of third party records where the contents of the records are unknown. The Panel adopted the Supreme Court of Canada’s reasoning in O’Connor that likely relevance at this stage “is simply a requirement to prevent the defence from engaging in “speculative, fanciful, disruptive, unmeritorious, obstructive and time-consuming” requests for production.¹⁴

36To evaluate the Member’s request, the Panel applied the first stage of the O’Connor Test by considering the relevance of the documents requested for production in relation to the particulars itemized in the Notice of Hearing. The Panel also considered the College’s submissions regarding privileged documents that fall under the purview of subsection 266(2) of the Education Act. Having considered the evidence and submissions of the parties, the Panel allowed the motion in part, and ordered the production of the following records to the Panel, which the Panel will review for relevance.

(1) 2017 Investigation File of Simcoe CAS

37The Panel is satisfied that the threshold of “likely relevant” for the production of the Simcoe CAS investigation file to the Panel for review has been met because the contents of the investigation file are relevant to the Member’s right to respond to allegations made against him by the College. Simcoe CAS investigated the same issues that are currently before the Panel and interviewed the witnesses whose testimony underpins the College’s case. Member’s Counsel presented a basis for concluding that the investigation file will likely contain prior statements made by key witnesses (Student 1 and Student 2) about the incidents in question in this hearing. This investigation record may therefore contain information that is not already available to the Member. Information contained in the Simcoe CAS investigation file may also include evidence that could lead to further avenues of investigation on issues in the Member’s case. The Panel makes no final decision yet with regard to the actual relevance or whether all or any part of the 2017 investigation file record ought to be disclosed to the parties.

(2) IEP for Student 1 and Student Support Records for Student 1 and Student 2

38The Panel denies the Member’s request for production of Student 1’s IEP and Student 1 and Student 2’s support records on the basis that these records comprise the OSR and are protected by statutory privilege under subsection 266(2) of the Education Act. Student records are privileged, with a few exceptions that do not apply in this case. According to subsection 266(2) of the Education Act:

Pupil records privileged

“A record is privileged for the information and use of supervisory officers and the principal, teachers and designated early childhood educators of the school for improvement of instruction and other education of the pupil and such record,

(a) subject to subsections (2.1), (3), (5), (5.1), (5.2) and (5.3), is not available to any other person; and

(b) except for the purposes of subsections (5), (5.1), (5.2) and (5.3), is not admissible in evidence for any purpose in any trial, inquest, inquiry, examination, hearing or other proceeding, except to prove the establishment, maintenance, retention or transfer of the record,

without the written permission of the parent or guardian of the pupil or, where the pupil is an adult, the written permission of the pupil.” [Emphasis added]

In accordance with the Supreme Court of Canada’s decision in McNeil, once privilege in documents is established, these records are not subject to the O’Connor Test analysis regardless of their relevance.

39To determine whether the documents sought by the Member (i.e. Student 1’s IEP and Student 1 and Student 2’s student support records) were privileged, the Panel reviewed the Guideline provided by the Minister of Education which lists the components of the OSR. Section 3 of the Guideline sets out the following regarding the contents of the OSR:

An OSR will consist of the following components:

• an OSR folder in Form 1A or Form 1

• report cards

• an Ontario Student Transcript, where applicable

• a documentation file, where applicable

• an office index card

• additional information identified as being conducive to the improvement or the instruction of the student.

40The Panel accepted College Counsel’s submission that the student support records for Student 1 and Student 2 fall within the contents of an OSR as listed at section 3 of the Guideline. These records are reasonably interpreted as “additional information identified as being conducive to the improvement or the instruction of the student.” Student support records are “Pupil records” that could be used by principals and teachers to tailor and improve instruction to the individual needs of a student. As a component of the OSR, student support records are protected by statutory privilege that form part of the “Pupil records” under subsection 266(2) of the Education Act. The Panel therefore denies the Member’s motion for production of the student support records for Student 1 or Student 2.

41Regarding the request for production of the IEP for Student 1, the Panel referred to subsection 3.4 of the Guideline which further stipulates that “an Individual Education Plan (IEP) or a student receiving special education programs and services” is part of the “documentation file” of the OSR, wherein a “documentation file” is one of the listed components of the OSR at section 3 of the Guideline. Thus, an IEP is part of an OSR and is similarly privileged. The Panel therefore also denies the Member’s motion for production of the IEP record for Student 1.

(3) Attendance Records

42Following the reasoning in Bussineau, the Panel also found that daily student attendance records, which contain information created and maintained by teachers, do not form part of the OSR and are therefore not privileged. The production of daily attendance records for Student 1 and Student 2 is therefore subject to the O’Connor “likely relevant” analysis. The Panel finds that the students’ attendance records are likely relevant. These records will likely show the history of Student 1 and Student 2’s school attendance in the Member’s class during the period in question, set out at paragraphs 5 and 6 of the particulars in the Notice of Hearing (i.e. “In or around October 2017”). Since this portion of the Notice of Hearing refers to discrete events, there is a reasonable possibility that if the attendance records show that one or both students were not attending classes during the entire period in question (or on the specific days of the alleged incidents), the credibility or reliability of Student 1 or Student 2’s evidence may be called into question.

43Having determined that these records are “likely relevant” for the purpose of production to the Panel, the Panel makes no final decision yet with respect to the actual relevance of the Student 1 and Student 2’s attendance records, or whether these records, or any part of these records, ought to be disclosed to the parties.

(4) Disclosure of Student 1 and Student 2’s Contact Information from College Counsel

44Regarding the request of Member’s Counsel for the contact information of Student 1 and Student 2, the Panel determined that there is an obligation for College Counsel to disclose Student 1 and Student 2’s direct contact information to Member’s Counsel. What these two witnesses will say at the hearing of this matter is at the centre of the College’s case against the Member, therefore Member’s Counsel has a right to contact them. The Panel determined, in agreement with ILC’s advice, that in a discipline hearing where a member’s professional status is at stake, any privacy interests that Student 1 and Student 2 have in their phone numbers is outweighed by the right of the Member to present a full answer and defence. The Panel determined that it would be appropriate in this case for College Counsel to provide the contact information for Student 1 and Student 2 to Member’s Counsel and his clerk only (and not to the Member), giving Member’s Counsel an opportunity to contact Student 1 and Student 2 directly, and giving the two witnesses the opportunity to decide whether to speak to Member’s Counsel or not.

45A decision with respect to what, if any, records will be produced to the parties will be issued after the Panel reviews the records identified above.

Date: February 25, 2021

Mary Ellen Gucciardi, OCT Chair, Discipline Panel

Élaine Legault Member, Discipline Panel

Jonathan Rose Member, Discipline Panel

Footnotes

1. 1R v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411 [O’Connor].
2. 2Ibid. at paras. 15 to 34.
3. 3R v. Coopsammy, 2008 ABQB 266 at para. 58 [Coopsammy].
4. 4O’Connor, supra note 1 at para. 138, quoting R. v. Chaplin, 1995 CanLII 126 (SCC), [1995] 1 S.C.R. 727, at pages 743-45.
5. 5Coopsammy, supra note 3 at para 59.
6. 6R v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66 at para. 27 [McNeil].
7. 7Ontario College of Teachers v. Bussineau, 2013 LNONCTD 11 [Bussineau].
8. 8Ibid. at paras. 20-21.
9. 9R. v. Batte, 2000 CanLII 5751 (ON CA), [2000] O.J. No. 2184 (ONCA) [Batte].
10. 10See R. v. S. (M), 2012 ONCJ 827 at para. 25.
11. 11McNeil, supra note 6 at para. 27.
12. 12O’Connor, supra note 1 at para 22.
13. 13College Counsel referred to the Stinchcombe test regarding Crown disclosure obligations in their submissions but did not provide the Panel with a copy of the decision.
14. 14O’Connor, supra note 1 at paras. 24-25.