DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Mammarella 2022 ONOCT 47

Date: 2022-05-06

DECISION AND REASONS FOR DECISION 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 Daniel Mark Mammarella, OCT a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

DANIEL MARK MAMMARELLA (REGISTRATION #257491)

PANEL: Jonathan Rose, Chair Rosemary Sadlier, OCT Pauline Smart

HEARD: November 17, 2021

COUNSEL: Christine Lonsdale, for the Ontario College of Teachers Jack Brown and Amin Nur, for Daniel Mark Mammarella Anna Harris, Counsel for York Region Children’s Aid Society Julie Maciura, Independent Legal Counsel

PUBLICATION BAN: Pursuant to subsection 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, Student 1 and Student 2, who were allegedly sexually abused, or the subjects of sexual misconduct, a prohibited act involving child pornography, or a prescribed sexual act.

1On November 17, 2021, Daniel Mark Mammarella (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”). In accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee, this proceeding was heard electronically.

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

A. PUBLICATION BAN

3The Panel ordered a publication ban pursuant to subsection 32.1(4) of the Ontario College of Teachers Act, 1996 (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, a prohibited act involving child pornography, or a prescribed sexual act. 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

4The allegations against the Member in the Notice of Hearing dated October 28, 2019 are as follows:

IT IS ALLEGED that Daniel Mark Mammarella 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 physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);

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

(d) 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;

(e) he failed to comply with the Act, or the regulations or the by-laws, and specifically section 32 of 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. Daniel Mark Mammarella is a member of the Ontario College of Teachers.

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

3. In or around the academic years 2016-2017 and 2017-2018, Student 1 was a male student at the School.

4. In or around the academic year 2016-2017, Student 2 was a male student at the School.

5. In or around the academic year 2016-2017, the Member:

(a) transported male students in his car and/or drove them home from school without appropriate permission;

(b) while driving with Student 1:

(i) engaged in inappropriate physical and/or sexual contact with Student 1;

(ii) placed his hand on Student 1’s lap;

(iii) made inappropriate comments to Student 1, including but not limited to: words to the effect of “[Student 1], every time you talk to me, I get this sensation that you want to tell me something deeper”;

6. On or about May 31, 2017, the Member:

(a) engaged in inappropriate physical and/or sexual contact with Student 2;

(b) placed his hand on Student 2’s arm;

(c) increased Student 2’s grade on a test and/or assignment without an appropriate basis to do so;

7. On or about April 30, 2018, the Member:

(a) engaged in inappropriate physical and/or sexual contact with Student 1;

(b) put his arm around Student 1;

(c) hugged Student 1;

(d) touched Student 1’s hair and/or head;

(e) touched Student 1’s cheek;

(f) forced and/or turned Student 1 to face him;

(g) made inappropriate comments to Student 1, including but not limited to: words to the effect of “I know you think I’m disappointing you, but I’m not … I still care about you … I miss my buddy … I miss driving you home”;

(h) engaged in interaction with Student 1 when he knew or should have known that his interaction was inappropriate and/or unwelcome.

C. The MOTION

5In his Notice of Motion dated September 3, 2021, the Member brought a motion for:

1. An Order for the York Regional Police (“the police”) to produce any and all documents, records, and materials whatsoever related to the investigation into Mr. Daniel Mark Mammarella.

2. An Order for the York Catholic District School Board (“the Board”) to produce all records of grades for Student 2; all communications between employees of the Board concerning Student 2’s marks; a complete list of all employees of the York Catholic District School Board who were in anyway involved in assigning, assessing, or editing Student 2’s Grade [XXX] marks, including contact information; all records related to [XXX] scholarships that Student 2’s [sic] planned to apply for, applied for or received, including any he did not obtain. Further, an order for the Board to produce any and all documents and policies related to teacher transportation of students; all video records allegedly depicting the Member transporting students; all documents related to any alleged transportation of students by the Member from 2016 to present; and all contact information for witnesses or complainants in this matter in their possession.

3. An Order for the York Region Children’s Aid Society (“CAS”) to produce all documents, records, and materials whatsoever related to the 2018 investigation surrounding Mr. Mammarella.

4. An Order for the Ontario College of Teachers (“the College”) to produce the contact information, including telephone number, address, and emails of Student 1 and Student 2 as well as any other witnesses the College presumes to rely upon.

THE GROUNDS FOR THE MOTION ARE:

5. The Member brings this motion pursuant to section 47 of the Ontario College of Teachers Act, 1996, ss. 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.

D. Test for production of third party records

6The applicable test to the Member’s motion is set out in R v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411 (“O’Connor”). The O’Connor Test has two stages.

7In the first stage, the onus is on the moving party to demonstrate that the records being sought for production are likely to be relevant to an issue in the hearing. Likely relevance means that there is a reasonable possibility that information is logically probative of an issue in the hearing. If likely relevance is established, the records are produced to the Panel for review.

8In the second stage, the Panel must balance a member’s right to a fair hearing with the privacy rights of the subjects of the documents produced to the Panel for inspection. In other words, before producing any of the requested documents to the parties, the Panel must consider the consequences of producing each of the requested documents on the privacy rights of any person mentioned in the documents as well as the consequences of not producing the requested documents on the member’s right to make full answer and defence (O’Connor, at para 30).

9The Court has enumerated the following factors to consider in the Panel’s determination at the second stage:

1. The extent to which the record is necessary for the accused to make full answer and defence.

2. The probative value of the record in question.

3. The nature and extent of the reasonable expectation of privacy vested in that record.

4. Whether production of the record would be premised upon any discriminatory belief or bias.

5. The potential prejudice to the complainant’s dignity, privacy or security of the person that would be occasioned by production of the record in question (O’Connor, at para 31).

E. Position of THIRD PARTIES on the motion

(a) Submissions from Counsel for York Region Children’s Aid Society (“CAS”)

10Counsel for CAS, Anna Harris, submitted that the allegations before the Panel in this matter were not investigated by CAS due to the age of the student complainant. She submitted that CAS has eight pages of records in its possession that do not mention the name of any student. Counsel submitted that CAS would not object to a production order from the Panel in this case, provided that the Member is able to establish likely relevance of the requested records. In a letter to the parties on November 12, 2021, counsel for CAS previously advised the parties that CAS “did not investigate due to the student’s age and further we were not provided with the name of the student involved.”

(b) York Regional Police Service (“Police”)

11Counsel for the Police, Carley Valente, provided by letter of November 5, 2021 that if the threshold of likely relevance is met, the Police would produce the requested records and send them by sealed envelope to the College.

(c) York Catholic District School Board (the “Board”)

12Counsel for the Board, James E. Davis advised through a letter of November 16, 2021, that the Board adopts the College’s position with respect to the motion and the motion materials and that the Board opposes the release of the documents requested.

F. SUbmissions of Member’s Counsel

13The Member argued that the records sought in this motion are central to the Member’s defence and necessary to ensure a fair hearing against serious allegations of professional misconduct that go to the heart of the Member’s reputation as an educator.

14The Member submitted that the test of likely relevance will be met when applied to the requested documents.

(a) CAS Records

15The Member submitted that CAS determinations often provide important evidence to support factual findings about whether a member has committed professional misconduct. In this case, the Member would be able to see what information was relayed to CAS when the school administration contacted CAS regarding claims made by a student. It would also allow the Member to see how CAS made its determination not to investigate the matter, which Member’s Counsel argued is very relevant to the Member’s right to respond to the College’s allegations against him and which involve that same student.

(b) Police Records

16Member’s Counsel confirmed that, in advance of the hearing date, College Counsel had obtained some of the requested police records and they have already been produced to the Member. Further, a sealed envelope containing police records has also been sent by the Police to the College. In addition to documents already in the Member’s possession, such as the police’s general occurrence information report, the sealed envelope may also contain a video interview that has not yet been produced. The Member therefore requested that the Panel make an order for production in respect of all police records sought by the Member.

17The Member argued that police records are relevant and should be disclosed because the Police were contacted regarding the allegations made against the Member. While no charges were laid against the Member, the investigating officer’s notes state that the Member engaged in “grooming behaviour” with Student 1, which the officer recorded in the context of a videorecorded interview with the student. Member’s Counsel would like to view the videorecorded interview to determine the basis for the officer’s statement in his notes, which ties directly to the allegations of professional misconduct made against the Member.

(c) Board Records

18The Member argued that the privilege established over records in the Ontario School Record (“OSR”) under section 266 of the Education Act should not extend to the grades requested in this case. The Member asserted that the defense is not requesting the contents of the entire OSR file, but only the grades that are directly related to this matter. The Member submitted that the Panel should narrowly interpret the nature of the privilege asserted and the Panel’s decision should be guided by the logic of prior cases where access to the OSR was nevertheless granted when deemed necessary for the proper operation of natural justice and procedural fairness.

19In the Superior Court decision of Robinson v. Northmount School for Boys, 2014 ONSC 2603 (“Robinson”), Justice Lederer held that although there is a privilege protecting material properly included in the OSR, disallowing information from other sources from being released if it happens to also constitute a part of the OSR would extend privilege in a fashion that denies the public interest and the requirement that privilege be strictly construed. The Superior Court in that case ultimately allowed access to parts of the OSR, rather than the entire file. The Member also submitted that in G.A. v. York Region District School Board, 2011 HRTO 2110 (“G.A.”), the Human Rights Tribunal of Ontario ordered an individual to give their written consent to access the OSR for the purpose of a proceeding where an applicant made allegations concerning matters included in the OSR, to which the respondent could not properly respond.

20The Member argued that even if the Panel deemed that the grades were inseparable from the OSR and as such privileged, in the decisions of O’Connor and R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66 (“McNeil”) the Supreme Court of Canada has stated that privilege is not absolute where the accused’s innocence is at stake. Member’s Counsel submitted that there is a direct allegation that the Member changed a student’s grades and access to this evidence could possibly prove that he did not change those grades, therefore the Member’s innocence is at stake. Because of these high stakes for the Member, the privilege relating to the grades records in this case should be carved out as an exception.

21The Member also argued that given the wording of the allegation particularized at paragraph 6(c) of the Notice of Hearing dated October 28, 2019, the Member does not know precisely whether the College is alleging that a single grade was changed on one assignment or test, or whether the allegation is put forward to establish a pattern of changing grades. The Member argued that the possibility of a wider interpretation of that allegation further supports the Member’s request for production of Student 2’s grades.

(d) Disclosure of Student Contact Information

22The Member sought an order from the Panel that contact information for Student 1 and Student 2 be disclosed to the Member so that Member’s Counsel may have the opportunity to contact these witnesses directly. Member’s Counsel argued that there is no proprietary right in a witness. Any party can interview a witness at any time to assist the truth-seeking function of a tribunal and to clarify the case that must be met. By interviewing witnesses, the parties can clarify the relative strengths and weaknesses of their case, which could drive them to settlement, saving judicial resources. The Member submitted that in acting as advocates for witnesses, the College is overstepping its role.

23The Member cited Ontario College of Teachers v. Tudor, 2020 ONOCT 213 (“Tudor”), where a disclosure request for witness contact information was made. That panel accepted the advice of Independent Legal Counsel that, given the College’s disclosure obligations, it would be inappropriate for the College to serve as an intermediary between witnesses and that Member’s Counsel is entitled to contact witnesses directly (but whether the witnesses choose to speak to Member’s Counsel is ultimately up to them). The Member argued that similarly in this case, the College’s offer to act as an intermediary contact with witnesses is inappropriate.

G. Submissions of College Counsel

24College Counsel submitted that it is neither risk nor cost-free to ask for materials through a productions motion, but that the College has tried to play a constructive role in narrowing the Member’s “kitchen sink” request by pre-emptively seeking evidence that is likely to be relevant from third parties. College Counsel reviewed the College’s position on each category of records requested.

(a) CAS Records

25College Counsel submitted that the College corresponded with CAS prior to this motion and learned that while the school administration had contacted CAS, CAS did not investigate. College Counsel argued that the Member’s submissions in this regard were entirely speculative, given that CAS has already informed the parties that they did not investigate due to the age of the student complainant. Consequently, none of the records in their possession refers to any student by name. Given that there is no investigation record, the College submitted there is no likely relevance in these records to the issues raised in the College’s allegations against the Member.

(b) Police Records

26College Counsel submitted that the College had sought police records regarding its investigation of the Member and that the records obtained from the Police to date have been provided to the Member. The previously disclosed records do suggest that there is a videotaped interview with one of the complainants in this case that has not yet been produced by the Police. If such an interview record exists, the College agrees that it would meet the likely relevance threshold and did not object to the release of this record to the Member.

(c) Board Records

27The Member’s request has two aspects to it: a request for Board policies and a request for grades. College Counsel submitted that the College sought to narrow what is at issue in this request and made inquiries of the Board. In response, College Counsel received Policy 303 from the Board as well as the corresponding procedures containing information regarding transporting students, which were shared with the Member on November 9, 2021 (College’s Responding Motion Record at Exhibit E). College Counsel argued that there is no evidentiary basis for any other Board policy being likely relevant to the issues in this case. In addition, the Member is still employed with the Board. School policies are available to all employees, including the Member. There is no unfairness to the Member related to access to Board policies and there are no additional policies that ought to be sought from the Board through a production order that would meet the likely relevance threshold.

28Regarding the grades request, the Member submitted that the defence needs to see Student 2’s grade records to make a full answer and defence. First, College Counsel argued that a grade record is part of the OSR and is therefore privileged information under subsection 266(2) of the Education Act and cannot be produced. Second, even if Student 2’s grade records were not privileged, Student 2’s grades would still be irrelevant to the issues at stake in this hearing . Paragraph 6(c) of the Notice of Hearing alleges that, “On or about May 31, 2017, the Member increased Student 2’s grade on a test and/or assignment without an appropriate basis to do so.” College Counsel submitted that this allegation refers to a single instance of grade alteration in the context of an alleged inappropriate relationship with that student. The only grade that could potentially be relevant is the specific grade in question. However, whether that specific grade was changed or not is not at issue.

29The affidavit filed by the Member on this motion contains the Member’s June 14, 2019 response to the Investigation Committee’s complaint against the Member, including the grade altering allegation (Affidavit of Emma Suzanne Bolf, sworn September 3, 2021, at Exhibit B). The complaint alleged that the Member had changed Student 2’s grade from a [XXX] to [XXX] without a reason. In his response, the Member admitted to changing the grade. The Member replied that he changed the grade because the student had earned that grade on an excellent presentation of a project (Affidavit of Emma Suzanne Bolf, sworn September 3, 2021, at Exhibit B). Based on the Member’s response, there is no debate about whether the grade was changed. Rather, the issue is what motivated the Member to make that alteration in the context of the Member’s relationship with the student. The Member’s motivations can be elicited during the Member’s testimony, argued College Counsel, but they cannot be found in a grade record. Consequently, there is no likely relevance to this grade record or to any other grade record of Student 2.

(d) Disclosure of Student Contact Information

30College Counsel submitted that the College has provided contact information (where they had it) for all witnesses except students. College Counsel agreed that the College is operating under its disclosure obligations in respect of relevant information in its possession, as articulated by the Supreme Court of Canada in R. v. Stinchcombe, 1995 CanLII 130 (SCC), [1995] 1 S.C.R. 754, and that, in general, Member’s Counsel has a right to speak to any witnesses. However, the College has exercised its discretion to withhold contact information of two student witnesses (who were under 18 at the material time). The College argued that the privacy interests of potential witnesses must be balanced against the Member’s interest in having complete disclosure on a case-by-case basis.¹ College Counsel submitted that this matter involves an allegation of sexual abuse in relation to students who are vulnerable persons. Students are entitled to special consideration in the College’s prosecution of matters of a highly sensitive nature and they have a right to privacy in their contact information.

31First, College Counsel offered to facilitate contact with the two witnesses and to forward information from Member’s Counsel to them. College Counsel argued that this is the proper process to follow to protect students so as not to have them feel unsafe or insecure in view of objectively sensitive information being raised in what is a difficult process. Second, the College already wrote to the witnesses and asked them about what contact information they would be comfortable sharing by letter of October 4, 2021. College Counsel received a response from Student 2, which states that Student 2 would be comfortable sharing an email address and phone number but did not feel comfortable disclosing their address because Student 2 believed that it would put their safety at risk.

32College Counsel submitted that the prosecution would provide Student 2’s email address and phone number to the defense, if the Panel ordered it, as consented to by Student 2 in their response dated October 5, 2021 (College’s Responding Motion Record, Exhibit F). College Counsel also submitted that College Counsel has not received a reply from Student 1 to their letter of October 4, 2021, requesting that witness’s permission to disclose contact information and that the College objects to disclosure of Student 1’s information.

33College Counsel argued that in the context of a proceeding where you have an individual (Student 2) who has already expressed concern that they are being put in an unsafe position if their home address is shared, College Counsel passing on communication from Member’s Counsel to the witnesses is an appropriate balance of the right to disclosure of contact information with a witness’s rights. Adopting the Superior Court’s position in Mearow, a criminal case where an application for disclosure of witness contact information was made, College Counsel cited that: “witnesses not only have a right to be secure, they also have a right to perceive that their security interests are being protected” (Mearow, at para 71) [Emphasis original].

H. ADVICE FROM INDEPENDENT LEGAL COUNSEL

34Independent Legal Counsel advised that the Panel could not make an order for production of privileged information. The OSR is privileged in accordance with subsection 266(2) of the Education Act and the request for the production of Student 2’s grades appear to fall into this category of privilege as grades form part of the OSR.

35Further, given the Member’s admission to the College’s Investigation Committee that he did in fact increase Student 2’s grade, the argument that the Member’s innocence is at stake in the request for Student 2’s grade records may not be supported.

36Moreover, if Member’s Counsel thought that the 6(c) allegation in the Notice of Hearing was somehow different or broader than the allegation specified by the Investigation Committee (to which the Member responded with the admission that he increased Student 2’s grade) then the appropriate way to address that question would have been for Member’s Counsel to ask for particulars from the College rather than to ask for a broad production order.

37With respect to the issue of disclosure of student contact information in possession of the College, Independent Legal Counsel reminded the Panel that witness consent is not the test for disclosure; although, practically speaking, Student 1 is unlikely to respond to Member’s Counsel given that College Counsel has already advised the witnesses in writing that they have no obligation to speak to either counsel, and Student 1 has not replied to that correspondence. The Panel may nevertheless order that Student 1’s contact information be disclosed, or it could accept College Counsel’s proposition to forward any correspondence from Member’s Counsel to Student 1.

38Independent Legal Counsel advised the Panel that its decision with respect to the disclosure of witness contact information is ultimately driven by the facts of a particular case. In Tudor, the College had refused to provide contact information for students but, unlike in the Member’s case, the witnesses at issue in Tudor had not been pre-emptively asked whether they would speak to defense counsel and then failed to respond. As the facts in Tudor were distinguishable from the Member’s case, it is open to the Panel to make a different order with respect to the disclosure of witness contact information. If, however, the Panel finds that the facts support the order sought by the Member, the Panel could decide to order the disclosure of witness contact information.

I. DECISION ON MOTION

(1) With respect to the Member’s motion for third party production of records:

1. On November 17, 2021, the Panel denied the request that the York Region Children’s Aid Society produce all documents, records and materials related to the 2018 investigation of the Member;

2. On November 17, 2021, the Panel ordered that the York Regional Police produce any and all documents, records and materials related to its investigation of Mr. Mark Daniel Mammarella to the Panel. On May 6, 2022, the Panel further ordered the release of all police records to the parties; and

3. On November 17, 2021, the Panel denied all requests for production relating to the York Catholic District School Board.

(2) With respect to the Member’s request for disclosure of Student Contact Information:

4. On November 17, 2021, the Panel ordered College Counsel to disclose the telephone number and email address of Student 1 and Student 2 to Member’s Counsel on the condition that the contact information not be shared with the Member himself.

J. REASONS FOR DECISION

(a) CAS Records

39The Panel determined that the records in CAS’s possession are not likely to be relevant to the issues in this hearing. A document relating to an initial contact from the Board to CAS that does not name any student and that resulted in no investigation into the issues that form the basis of this complaint does not meet the likely relevance test. A record documenting initial contact from the Board to CAS is highly unlikely to contain information that would be relevant to the Member’s defence or that could affect the competence of witnesses to testify. The Panel finds these records would have a low probative value and are not necessary for the Member to make full answer and defence. These records were therefore not produced to the Panel, in accordance with the Panel’s November 17, 2021 order, and will not be produced to the parties.

(b) Police Records

40The Panel determined that police records of the criminal investigation that arose after the Board contacted the Police about the Member’s conduct are likely relevant. The Panel further determined that in balancing the Member’s right to make full answer and defence with the privacy rights of the subjects of these documents, the police records should be produced to the parties. The Panel reviewed a video interview with Student 1 conducted by Detective Constable Daniel Ju on May 25, 2018, which was produced to the Panel by the Police. The Panel also reviewed the General Occurrence Information, which the parties advised was already produced to the Member. The General Occurrence Information inspected by the Panel contains police officer reports; officer duty notes regarding Student 1’s prior statements to the Police on May 8, 2018 and on May 25, 2018; and documentation regarding student complaints to the School’s administration about the Member’s behaviour toward Student 1.

41The parties did not dispute that police records which contain Student 1’s prior statements to the Police are likely relevant to the Member’s right to make full answer and defence. The College has indicated that it intends to call Student 1 as a witness in its case against the Member. During the Member’s disciplinary hearing, prior consistent statements by a witness about the allegations may have probative value to help establish the unfolding or narrative of events or to rebut an allegation. Prior inconsistent statements by a witness may also go to the credibility of that witness and to the reliability of their evidence. If at the discipline hearing, Student 1 were to say something inconsistent with his previous response to the Police, then a credibility issue could be raised, and it would be appropriate for the examiner of the witness to then introduce Student 1’s prior statements into evidence. The Panel therefore finds that police records containing prior statements by witnesses regarding the incidents at issue are likely to be relevant.

42Upon reviewing the video interview, police occurrence reports and police notes, the Panel determined that these police investigation records are relevant, in that they deal with the issue of the alleged misconduct by the Member and the investigation of specific incidents at issue at paragraphs 5 and 7 of the particulars in the Notice of Hearing. The details of the student reports and investigation by the School’s administration also provide context regarding the Member’s interactions and the nature of the Member’s physical contact with Student 1 that may be necessary for the Member to prepare his defence.

43The Panel considered the privacy interests of Student 1 and third parties named in the police records. The Panel finds that the reasonable expectation of privacy of a complainant in giving evidence to the police during a criminal investigation is low. Student 1 consented to interviews with police officers and was aware that the interviews (including the video interview) were being recorded as part of a criminal investigation into the Member’s conduct. Similarly, student complaints about the Member were made to the School’s administration voluntarily and it could reasonably be expected that the conduct would become known in the course of an investigation into the Member’s conduct. No assurances of confidentiality regarding this information were made.

44The Panel finds it appropriate for the police video interview and all other records to be provided to the parties, with the redactions of third party contact information and internal coding already applied by the Police. If there is information in the police records about third parties which is not relevant to the disciplinary hearing, this can be addressed when the Discipline Committee is required to consider the admissibility and/or weight of potential documents that may become exhibits in the hearing. The Panel therefore finds that the balance of interests favours the production of these records to the parties.

(c) Board Records

(i) Grades

45The Panel denied the Member’s request for production of Student 2’s grades on the basis that student marks are contained in the OSR and are therefore protected by statutory privilege under subsection 266(2) of the Education Act. Further, the Panel determined that there are no procedural fairness issues that would necessitate an exception to this privilege in this case. The Member submitted that grades either do not form part of the OSR (which means that they would not be covered by statutory privilege and could be produced), or if they are indeed privileged and part of the OSR, production ought to nevertheless be ordered because the Member’s innocence is at stake. The Panel will address the Member’s arguments in turn.

46According 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 McNeil, once privilege in a document is established, that record is not subject to the O’Connor test analysis, regardless of its likely relevance.

47The Panel also 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. [Emphasis added]

48Given that a report card which tracks student grades is explicitly listed as part of the OSR, the Panel found that grades are a part of the OSR and that they are protected by statutory privilege as “Pupil records” under subsection 266(2) of the Education Act.

49Next, the Panel considered whether a carve-out exception to privilege should apply regarding Student 2’s grades in this case. According to the Supreme Court’s ruling in McNeil, the first step of the O’Connor analysis is to determine if any information is privileged, and if it is privileged, then that information is not disclosable unless innocence is at stake. The Member argued that in this case, records containing Student 2’s grades must be produced because the Member’s innocence is at stake, and it would be unfair for the Member not to have access to these records to prepare his defence. The Member characterized the request for grade records as a factual or empirical determination about whether Student 2’s grades had been increased and submitted that access to all grades for Student 2 was required to prove the Member’s innocence in respect of the College’s allegation at paragraph 6(c) of the Notice of Hearing, namely that the Member inappropriately altered Student 2’s grades.

50However, College Counsel demonstrated that the Member has already admitted that he changed the grade referred to in allegation 6(c) of the Notice of Hearing. Given the Member’s specific admission, the Member’s innocence is not at stake on the question of access to a record containing Student 2’s grades. The Panel agrees with College Counsel that the issue is not whether the grade was increased or not, but rather it is a matter about why the grade was increased in the context of the Member’s relationship with Student 2. The factual determinations regarding this allegation will therefore depend on the evidence of the Member and Student 2 at the disciplinary hearing, rather than on the confirmation of the grade change, which the Member has already agreed to increasing.

51Further, College Counsel confirmed that allegation 6(c) in the Notice of Hearing refers to one incident involving one grade change by the Member. While the Member argued that production of Student 2’s grade records were needed because the allegation was broader than one incident involving a single grade change, the Panel adopts Independent Legal Counsel’s advice that determinations about the scope of the College’s allegations should be sought through a request for particulars rather than a motion for production.

52The Panel also determined that, given the scope of allegation 6(c) in the Notice of Hearing, there are no fairness concerns that could justify an exception to the privilege protecting materials contained within the OSR at section 266(2) of the Education Act. The Member asked the Panel to exercise a discretionary authority to waive privilege over Student 2’s school grades based on two cases. However, the Panel did not find that the case law provided by the Member would support an order to override or carve out an exception to the statutorily established privilege in this case.

53While the Robinson case affirms that if a party obtains information that happens to be part of the OSR through some other means, that party would not be prohibited from using the information during a hearing, in the Member’s case, there was no suggestion made that the Member could have access to Student 2’s grades outside the OSR. Similarly, in the G.A. case, the applicant had access to information and documents contained within the OSR and was attempting to prevent the respondent from using the same information and documents. Since those documents would be material to that case, that tribunal determined that it would be procedurally unfair for the applicant to proceed with its case on the basis of those records and not the respondent. This also differs from the circumstances of the Member’s case. Neither party has access to materials contained in the OSR or has declared that they would use OSR records to argue their case.

(ii) Other Records Requested from the Board

54The Panel found that there is no basis for the Member’s request for production of a large amount of information about Student 2’s academic history. In his motion, the Member requested all of Student 2’s grades, administrative communications about those grades, a list of employees who were assigning, assessing or editing Student 2’s school grades and records related to Student 2’s [XXX] scholarships. The Panel did not hear submissions from the Member about how these records are likely to be relevant to the issues at stake in this hearing, so the Panel denied these requests for production.

55The Panel also declined to order production of any additional Board policy records. During the hearing of this motion, College Counsel submitted that she had already contacted the Board and provided copies of all transportation policies to the Member and furthermore, as an employee of the Board, the Member had continued access to all Board policies.

56The Panel did not hear submissions from the Member regarding the existence or likely relevance of any video footage allegedly depicting the Member transporting students, so the Panel declined to make an order in this regard.

57Finally, as College Counsel indicated that contact information for witnesses (other than Student 1 and Student 2) had already been shared with the Member, there is no need for the Panel to make any order regarding the disclosure of witness contact information (except regarding Student 1 and Student 2, which will be discussed below).

(d) Disclosure of Student 1 and Student 2’s Contact Information

58Regarding the Member’s request for disclosure of the contact information for Student 1 and Student 2, the Panel determined that College Counsel must disclose the telephone numbers and email addresses of Student 1 and Student 2 to Member’s Counsel only, on the condition that this contact information not be shared with the Member.

59College Counsel argued that the College is exercising its discretion to protect the privacy and safety of students involved as complainants and witnesses in the prosecution of a matter involving sexual abuse allegations against the Member. College Counsel argued that an appropriate balancing of witness privacy rights with the Member’s right to be able to make full answer and defence would be achieved if College Counsel communicates information from Member’s Counsel to the witnesses. However, College Counsel pre-emptively sought and secured the consent of one of the two student witnesses (Student 2) to disclose contact information to the Member, in case the Panel were to make such an order.

60The Panel disagrees with the College’s position. First, the Panel adopts the advice of Independent Legal Counsel that witness consent is not the threshold for College Counsel’s disclosure obligations. So, while one witness (Student 2) provided consent to disclose some contact information, that is not a determining factor in the Panel’s order.

61The College’s disclosure obligations, as set out at rule 7.01 of the Rules, bind the College to produce all information as required by law. There is a heightened obligation on the part of College Counsel to ensure that the proceedings are fair and just, which includes a duty of fairness to the Member. In the context of the College’s disclosure obligations, that duty includes allowing reasonable access to witnesses without acting as a gatekeeper or intermediary, so that the defence is given an opportunity to conduct their own independent assessment of witnesses. Meanwhile, witnesses have a right to decline to cooperate with the defence and are entitled to personal security while they perform the role of a witness.

62College Counsel cited a criminal case (Mearow) to justify an exception to the rule that all relevant information, including contact information for witnesses, must be disclosed. In that case, multiple safety concerns were raised through evidence of threats and intimidation of witnesses as well as a violation by the accused of a non-communication order. In determining what, if any, limits should be placed on the College’s disclosure obligations to protect the security and privacy of two former students, the Panel relied on the factual circumstances of this case.

63The Panel did not receive evidence of any specific safety concerns between Member’s Counsel, the witnesses or the Member. Unlike in Mearow, there is no evidence in this case of any intimidating, harassing or threatening behaviour toward witnesses. The Member is still employed by the Board and is not the subject of an interim suspension by the College or any other terms. Similarly, there were no restrictions such as a non-contact order imposed by the Crown on the Member during the criminal investigation that could reasonably suggest any safety concerns. There is also no indication that student safety would be compromised by Member’s Counsel being given the opportunity to contact witnesses to verify whether they wish to speak to counsel about this case.

64When it comes to reasonable privacy expectations of witnesses, College Counsel has submitted that the College intends to call Student 1 and Student 2 to testify, which will require those witnesses to give evidence about allegations of sexualized conduct of a teacher and to be subject to cross examination on that evidence in a public hearing. While speaking to these allegations may be emotionally upsetting and deeply uncomfortable, the integrity of the professional discipline process requires it, and the Panel therefore cannot guarantee privacy to witnesses in the details of these matters, including by preventing defence counsel from contacting witnesses about these allegations before they testify.

65While Student 1 and Student 2 are no longer students, the Panel still considers witnesses making allegations of sexual abuse against a former teacher to be vulnerable individuals. The Panel has ordered that the contact information be disclosed to Member’s Counsel and that at no point is it to be shared with the Member. The Panel has also ordered that the disclosed contact information be limited to an email and phone number only. This will permit communication from Member’s Counsel to be delivered directly to Student 1 and Student 2 by phone or in writing and for Student 1 (should Student 1 choose to respond) and Student 2 to reply in a private manner and at the time and location of their choosing. Or, upon receiving a call or email from Member’s Counsel, they may also decline to communicate by not replying at all.

Footnotes

1. 1College Counsel cited R. v. Mearow et al, 2013 ONSC 1865 at para. 26, citing Justice Trafford in R. v. Brown, [1997] O.J. No. 6165 (“Mearow”).