Ontario College of Teachers v. Byam, 2022 ONOCT 89

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Byam 2022 ONOCT 89

Date: 2022-09-19

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 Bernadette Yolande Byam, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

BERNADETTE YOLANDE BYAM (REGISTRATION #519305)

PANEL: Rebecca Forte, OCT, Chair Sara Nouini, OCT Jonathan Rose

HEARD: December 2, 2020

Andrew Matheson and Vincent DeMarco, for the Ontario College of Teachers

Olanyi Parsons and Rebecca Scantlebury, for Bernadette Yolande Byam

Timothy Wood, for the Complainant, Student 1 ([XXX])

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 person who was allegedly sexually abused, or the subject of sexual misconduct, a prohibited act involving child pornography, or a prescribed sexual act.

1On December 2, 2020, Bernadette Yolande Byam (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”).¹ With the consent of the parties, and in accordance with section 3 of the Hearings in Tribunal Proceedings (Temporary Measures) Act, 2020, S.O. 2020, c. 5, Sched 3, this matter proceeded electronically.

2The Member attended the motion and had legal representation.

3At the conclusion of the motion for the production of third-party records, the Panel reserved its decision. This is the Panel’s decision on the Member’s motion for production of third-party records and the reasons for its decision. More specifically, this decision sets out the Panel’s decision and reasons with respect to the denial of the Member’s motion to produce third-party records held by the [XXX]. This decision also sets out the Panel’s reasons for requiring the production of third-party records held by the Toronto District School Board (“Board”) for the Panels’ review, in accordance with the legal test set out by the Supreme Court in R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411(“O’Connor”). Following receipt and review of the records by the Panel, the Panel will release another decision with reasons addressing the second stage of the O’Connortest, and which documents will be disclosed to the parties.

A. PUBLICATION BAN

4On August 5, 2020, the 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 for Student 1, who was allegedly sexually abused. Accordingly, no person shall publish the identity of, or any information that could disclose the identity of Student 1.

B. The MOTION

6In her Amended Notice of Motion dated July 31, 2020, the Member brought a motion for:

1. An order that the subject Complainant, [XXX], produce his [XXX] medical records for the period from January 1, 2015 to December 31, 2016; and

2. An order that the College produce the application and all documentation related to the same of the Member.²

7In a second Amended Notice of Motion dated July 31, 2020, the Member brought a motion for:

1. An order for disclosure of the Ontario Student Record of Student 1, the subject Complainant, [XXX] namely, Student 1’s transcript and attendance record.³

C. Position of THIRD PARTIES on the motion

8On August 5, 2020, the Panel ordered the Member to serve her Notice of Motion for the production of third-party records on all parties to the motion and persons possessing the documents, and any other person with a significant interest in the records by August 19, 2020: see Adjournment Motion.

9[XXX] and the Toronto District School Board were served with the Notices of Motion. Neither [XXX] or the Toronto District School Board attended the motion hearing on December 2, 2020, nor did they provide written submissions for the Panel’s consideration.

10Student 1 made submissions (outlined below) opposing the Member’s motion for production of third-party records through his legal representative.

D. Submissions of Member’s Counsel

11Member’s Counsel argued that the records sought by the Member are central to her defence and necessary to ensure a fair hearing against serious allegations of professional misconduct, which could lead to a revocation of the Member’s certificate. Member’s Counsel submitted that the records being sought are relevant because the issue of when the Member had engaged in a sexual relationship with Student 1 is a live issue. Therefore, they are necessary to allow the Member to make a full answer and defence to the allegations made against her.

(a) [XXX]records

12At the outset of the motion, Member’s Counsel advised that the Member was in agreement with Student 1 that disclosure of a patient’s personal health information is subject to section 35 of the Mental Health Act, R.S.O. 1990, c. M.7 (“MHA”). In particular, section 35(5) of the MHA requires that any records the Panel orders to be produced by [XXX] will be disclosed to the Panel for their review prior to their release to the parties. Further, section 35(9) of the MHA requires the Member to bring an application before the Ontario Divisional Court for approval of said released records to be used at the hearing of the merits.

13Member’s Counsel stated the Member also accepts Student 1’s position that the applicable legal test for the production of third-party records to be applied by the Panel as it relates to Student 1’s [XXX] records was that set out in R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668 (“Mills”), as opposed to the test set out O’Connor. The O’Connor test is a two-part test wherein the Panel must first decide whether the documents sought by the moving are likely relevant to an issue at hand in the proceedings. If so, the Panel may order the production of the records to the Panel for review. As a second step, the Panel must examine and weigh the salutary and deleterious effects of a production order and determine whether a non-production order would constitute a reasonable limit on the ability of the member to make full answer and defense: see O’Connor at paragraph 30. In doing so, the Panel considers the following factors: (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 (see O’Connor at paragraph 31).

14The Mills test is also a two-part test but it requires the Panel to balance other considerations before ordering the production of third-party records. The first step in the Mills test incorporates the ‘likely relevant’ threshold set out in O’Connor. In other words, the moving party must first demonstrate that the records being sought are likely relevant to an issue in the proceeding because they have a reasonable possibility of containing information that is logically probative of an issue in the hearing or the competence of a witness: see O’Connor at paragraph 22. However, at this first stage the Panel must also determine whether the production of the record is “necessary in the interests of justice”: see Mills at paragraph 126. This requires a consideration of the salutary and deleterious effects of production to the Panel on the Member’s right to make full answer and defence and on the rights to privacy and equality of the complainant or witness and any other person to whom the record relates: see Mills at paragraph 127. To this end, the Panel would need to take into account a series of factors in deciding whether the record should be produced to the Panel:

(a) the extent to which the record is necessary for the member to make full answer and defence;

(b) the probative value of the record;

(c) the nature of and extent of the reasonable expectation of privacy with respect to the record;

(d) whether production of the record is based on a discriminatory belief or bias;

(e) the potential prejudice to the personal dignity and right to privacy of any person to whom the record relates;

(f) society’s interest in encouraging the reporting of sexual offences’

(g) society’s interest in encouraging the obtaining of treatment my complainants of sexual offences; and

(h) the effect of the determination on the integrity of the trial process.

(Mills, at paragraph 127).

15After this first stage, if it finds that the requested records are likely relevant to an issue in the hearing and that production is necessary in the interests of justice, the Panel would order [XXX] to produce Student 1’s mental health records to it. In that instance, [XXX] would be required to release the records to the Panel for their review. At the second stage, the Panel would examine and weigh the beneficial effects as compared to the damaging effects of a production order (including considering the same factors it considered at the first stage), but this time with the benefit of seeing the records and then it would determine whether not ordering the records would constitute a reasonable limit on the ability of the Member to make full answer and defence.

16Member’s Counsel acknowledged that the requested [XXX] records engage Student 1’s privacy interests. Member’s Counsel confirmed that the Member is therefore limiting her production request to the records in Student 1’s [XXX] file that relate to the disclosures he made about his sexual relationship with the Member and the direction that [XXX] staff gave him with respect to those allegations. The Member argued that such information is relevant and important as it will allow the Member to make a full answer and defence to the issues of Student 1’s motivations for making the complaint, how and why Student 1 came to record his telephone call with the Member, whether there are inconsistencies in Student 1’s evidence, and ultimately Student 1’s credibility.

17The Member argued that the infringement of Student 1’s privacy interests are mitigated by the limited scope of the Member’s request and the fact that the Panel will receive the documents upon production and can determine that the Member will only be provided with information that is not otherwise sensitive, confidential, and irrelevant to the issue at hand.

(b) Board Records

18Member’s Counsel confirmed that the Member is not seeking the entirety of Student 1’s Ontario Student Record (“OSR”), but rather, Student 1’s transcripts and attendance records in Student 1’s OSR between [XXX] and [XXX]. While not specified in the Amended Notices of Motion, Member’s Counsel stated during the motion that the Member also sought the production of Student 1’s Individualized Education Plans (“IEP”) for that time period. Member’s Counsel argued that the records sought are relevant to the hearing as they will help establish when Student 1 had acquired [XXX] services at his school (and therefore, when the Member would have established her professional relationship with Student 1) and whether Student 1 had been absent from school during the time period in which the College alleges the Member had engaged in her sexual relationship with Student 1. Member’s Counsel submitted that the issue of when the Member engaged in inappropriate conduct with Student 1 is a live issue between the parties, and therefore the records are necessary for the Member to make full answer and defence to the allegations against her.

19Member’s Counsel referred the Panel to a previous decision of the Committee, Ontario College of Teachers v. Bussineau, 2013 LNONCTD 11 (“Bussineau”) wherein the Committee ordered the production of a student’s attendance records, having determined that the student had a minimal expectation of privacy in those records. The Committee preserved other students’ privacy rights by requiring the redaction of all personal names other than that of the student in question. Member’s Counsel urged the Panel to adopt a similar approach in this instance.

E. Submissions of the complainant (student 1)

(a) [XXX] Records

20Student 1 opposed the Member’s motion for the production of his [XXX] records. Counsel for Student 1 argued the [XXX] records are not relevant to the hearing. The Complainant referred the Panel to the decision of the Ontario Court of Appeal in R. v. Batte, [2000] O.J. No. 2148 (ONCA) (“Batte”) for the proposition that “the mere fact that a complaint has spoken to a counsellor or doctor about the abuse or matters touching on the abuse does not make a record of those conversations likely relevant to a fact in issue or to a complainant’s credibility” (at paragraph 71). Rather, the Member must demonstrate that the [XXX] records have “some potential to provide [her] with some added information not already available to the defence or have some impeachment value” (see Batte at paragraph 72). Counsel for Student 1 submitted that it is not sufficient for the Member to raise questions about Student 1’s motives for reporting the Member’s sexual abuse as a basis for ordering the production of his [XXX] records. Counsel for Student 1 also submitted that the only instance where potential impeachment issues may arise is with respect to the circumstances of the phone call Student 1 had with the Member, which he recorded. However, it was the position of Counsel for Student 1 that those are details that are not relevant to proving whether the Member had engaged in professional misconduct and are so incidental that they would have little bearing on Student 1’s credibility.

21Counsel for Student 1 further submitted that the [XXX] records were not necessary in the interests of justice. Counsel for Student 1 reviewed each of the factors outlined in the second part of the Mills test. He reiterated that the [XXX] records would have little probative value in determining the Member’s discipline proceeding and would reveal little as to Student 1’s credibility or motives in reporting the Member’s abuse, especially considering that the Member has already admitted in her criminal trial to having had a sexual relationship with Student 1. Counsel for Student 1 submitted that Student 1 had a very high expectation of privacy of his [XXX] health records as they contain details about his lifestyle and intimate relations, and that his privacy interests should be given great weight in this disciplinary hearing: see College of Physician and Surgeons of Ontario v. Lee, Order and Reasons for Order of the Discipline Committee, September 5, 2017 (“Lee”). Counsel for Student 1 reminded the Panel that the [XXX] records were created in the context of a counselling relationship where confidentiality is crucial for Student 1’s therapeutic relationship and preserving the security of his psychological integrity. Counsel for Student 1 submitted that ordering the production of Student 1’s [XXX] records would not only negatively impact Student 1 but would contribute to discouraging sexual abuse victims from seeking treatment and reporting their abuse.

(b) Board Records

22Student 1 took no position with respect to the Member’s request for the production of his OSR records.

F. Submissions of College Counsel

(a) [XXX] Records

23College Counsel agreed with Student 1’s position in opposing the production of Student 1’s [XXX] records.

(b) Board Records

24College Counsel opposed the Member’s request for the production of Student 1’s OSR. College Counsel noted that OSRs are privileged under subsection 266(2) of the Education Act, R.S.O. 1990, c. E.2 (“Education Act”). College Counsel referred the Panel to R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66 (“McNeil”), wherein the Supreme Court of Canada stated that “… in all but the rarest cases where the accused’s innocence is at stake, the existence of privilege will effectively bar the accused’s application for production of the targeted documents, regardless of their privilege”: at paragraph 27.

25College Counsel submitted that Bussineau did not actually support the Member’s motion, but rather, affirms that the Panel should not order the production of Student 1’s OSRs given that they are statutorily privileged. The Committee in Bussineau ordered the production of a student’s attendance records on the basis that those records did not form part of the OSR of the student in question and there was no absolute privilege preventing the production of those records: see Bussineau at pages 20-22.

26College Counsel opposed the Member’s request for transcripts and attendance records on the basis that they were not likely relevant to the issues for the hearing and would not assist the Panel in determining when the Member met with Student 1. College Counsel noted in their factum that there is no indication the Member sought these records during her criminal proceedings, when her liberty was at stake. College Counsel argued during the motion that the Member was seeking the production of these records for the sole purpose of testing Student 1’s credibility, and that is not a sufficient basis to meet the likely relevance threshold favouring production: see Deitel v. College of Physicians and Surgeons of Ontario, [1997] O.J. No. 1866 (ONSC) (“Deitel”). Further, College Counsel submitted that Student 1’s OSRs are not necessary in the interests of justice because the Member can test Student 1’s credibility during the hearing through cross-examination of Student 1.

G. ADVICE FROM INDEPENDENT LEGAL COUNSEL

27Independent Legal Counsel (“ILC”) reminded the Panel that the parties were in agreement that the Panel could apply the Mills test in determining whether to order the production of Student 1’s [XXX] records. ILC noted that previously, the Committee had largely relied upon the test in O’Connor in third-party production motions. However, ILC confirmed that the Ontario Division Court has found it reasonable for discipline tribunals to apply the Mills test, which has been done by other regulators: see College of Physicians & Surgeons (Ontario) v. Au, 2005 CanLII 2037 (ON SCDC), [2005] O.J. No. 234 (“Au”) and Law Society of Ontario v. Odeleye, 2020 ONLSTH 114. ILC advised that the Panel can apply the Mills test with respect to the Member’s motion for Student 1’s [XXX] records and reviewed the two steps involved in that analysis.

28ILC reminded the Panel that the Member’s onus of showing that the information being sought is likely to be relevant to the issues at hand or the competence of the complainant to testify is a significant (but not onerous) burden. This is to prevent speculative, unmeritorious, and time-consuming requests for information.

29ILC noted that the Member provided two reasons for requiring the production of Student 1’s [XXX] records: namely, to assist in determining the credibility of Student 1 and any ulterior motives Student 1 had in reporting the Member’s conduct to the police. ILC advised that the provision of records for the sole purpose of testing credibility does not meet the likely relevance threshold: per Deitel. ILC also advised that the likely relevance of the [XXX] records should be considered in conjunction with the fact that the Member has already admitted in criminal court that she had a sexual relationship with Student 1. ILC also noted that a complainant’s motive is not in and of itself likely to be relevant to the issues before the Panel on a hearing of the merits. It is quite common for complainants to make a complaint for the purpose of retaliation, for example. ILC noted that the Member has not suggested what ulterior motives Student 1 may have had or why his motives would be relevant to the findings the Panel would have to make in the hearing.

30ILC advised that if the Panel determines that the [XXX] records should be produced to them, they must then conduct the second stage of the Mills test by weighing the probative value of the records against the privacy interests of Student 1, this time with the benefit of seeing the documents, before releasing the records to the parties. ILC also confirmed that the Member would require permission of the Divisional Court to actually use any of the produced [XXX] records in the hearings.

31With respect to Student 1’s OSR, ILC confirmed that the Ontario School Record (and the material that was properly contained in it in accordance with the purposes set out in the Education Act) is privileged under the Education Act and should not be released. However, ILC notes that the law has allowed for the use of information, in litigation or discipline hearings, that has found its way into an OSR but that can also be obtained through other means. For example, in Bussineau, the Committee felt the attendance records for the student in that matter could be obtained outside of the student’s OSR and so the attendance records were not protected by the privilege in the Education Act.

32ILC advised that the test that the Panel should use in determining whether the attendance record should be produced is the O’Connor test, as they are not counselling records. ILC confirmed that there seems to be a live issue as to when the Member had a sexual relationship with Student 1 and that therefore, the argument that the attendance records are likely relevant is stronger than the argument for the likely relevance of the [XXX] records. ILC advised that if the Panel determined that the attendance records are likely relevant, and should be produced to the Panel, then they must apply the second stage of the O’Connor test once they receive the records to determine whether and to what extent the records will be released to the parties.

H. DECISION ON MOTION

33Having considered the submissions of the parties and Student 1, the Panel makes the following order:

1. The Panel denies all requests for production relating to Student 1’s medical records from the [XXX]; and

2. The Panel orders that the Toronto District School Board produce to the Panel Student 1’s ([XXX]) attendance record and dates of Individualized Education Plans, for the period from September 1, [XXX] to September 30, [XXX].

I. REASONS FOR DECISION

(a) [XXX] Records

34The Panel notes that Member’s Counsel accepted that the Panel could apply the Mills test to the [XXX] records. Additionally, the Panel accepts the submissions by the Complainant and advice of ILC that the Mills test has been applied by other discipline tribunals: see Au and Lee. As such, the Panel has made its determination regarding Student 1’s [XXX] records in accordance with the Mills test.

35The Panel has determined that the records in [XXX]’s possession are not likely to be relevant to the issues in this hearing or Student 1’s competence to testify at the hearing. The Member seeks production of the [XXX] records to determine what Student 1 disclosed about his relationship with the Member to [XXX] staff and whether Student 1 received directions from [XXX] staff about reporting the Member’s sexual relationship with him. In the Panel’s view, the issue of how the complaint against the Member came to be is irrelevant to whether the Member engaged in professional misconduct. Whether Student 1 received direction from this treating [XXX] does not have bearing on the veracity of the allegations made against the Member. To the extent they may provide information as to Student 1’s credibility, the Panel accepts ILC’s advice that provision of records for the sole purpose of testing credibility does not meet the likely relevance threshold: per Deitel. The Panel also notes that the Member will have an opportunity to cross-examine Student 1 during the hearing about the allegations he made against her. Additionally, the Panel did not hear any evidence that the [XXX] records would provide information regarding the competence of Student 1 to testify at the hearing.

36Furthermore, even if the records were likely relevant, the Panel is not satisfied that the [XXX] records are necessary in the interests of justice. The Panel agrees with Student 1 that he has a significant privacy interest in the [XXX] records. In this instance, the Panel finds that Student 1’s privacy interests far outweigh any probative value the records may offer for the Member’s defence. As such, the Panel denies all requests for production relating to Student 1’s [XXX] medical records.

(b) Board Records

37The Member has requested the transcripts, Individualized Education Plans, and attendance records from Student 1’s OSR. Student 1 did not take a position on the Member’s request for the production and release of his OSR records, and the Panel did not hear submissions from the Toronto District School Board with respect to these records either.

38With respect to the Member’s request for Student 1’s transcripts and IEPs, the Panel is of the view that they are part of Student 1’s OSR and are protected by privilege pursuant to subsection 266(2) of the Education Act.

39According 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.”

40The Panel has also considered the Supreme Court of Canada’s decision in McNeil and understands the Supreme Court of Canada to have held that once privilege in a document is established, in all but the rarest cases where the accused’s innocence is at stake, the existence of privilege will effectively bar the accused’s application for production of the documents, regardless of their relevance.

41The issue of whether information in a student’s OSR can be produced has been considered by this Committee previously: see Bussineau. The Committee in that case considered decisions that dealt with subsection 266(2) of the Education Act, including D.N. v. Kawartha Pine Ridge District School Board, [2005] O.J. NO 3107 (ONSC) and Robinson v. Northmount School for Boys, 2013 ONSC 1028 (“Robinson”). The court in Robinson held that, “If the information is put in the OSR for some other reason [i.e., other than for the improvement of instruction and other education of the pupil], it should not be in the OSR and is not subject to the privilege” (Robinson, at paragraph 14).

42The Committee in Bussineaufound 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, also exist outside of the OSR.

43Like the Committee in Bussineau, this Panel finds that the daily attendance records of a student also exist outside of the OSR and so are not subject to the privilege in subsection 266(2) of the Education Act. The Panel has accepted ILC’s advice that the appropriate test to apply to the Member’s request for the production of Student 1’s attendance records is the O’Connor test.

44The Panel finds that a copy of an Individualized Education Plan, or a description of the accommodation a student may have needed or been given as a result of an Individualized Education Plan, are properly part of the OSR and are protected by privilege. The Panel does not, however, find that the dates that a student may have had an Individualized Education Plan in place are part of the OSR and as such, are not protected by privilege. As with the attendance records, the Panel applies the O’Connor test to the issue of production of the dates when Student 1 had an Individualized Education Plan in place.

45In this instance, the Member has argued that information about Student 1’s attendance at school and when Student 1 had been provided with assistance from the [XXX]Department are necessary for establishing when the Member could have had contact with Student 1. The Member’s interest in these records is restricted to the dates Student 1 attended school, when Student 1 had assistance from the [XXX] Department at the school, and when the Member argues that she could have established her relationship with Student 1. The Member asserts that the time of the Member’s conduct is a live issue between the parties. The College asserts in the Notice of Hearing that the Member’s inappropriate conduct and relationship with Student 1 began as early as September [XXX] through September [XXX]. The Member denies this.

46The Panel accepts that the timeframe of the Member’s relationship with Student 1 is material to the allegations against the Member and is a live issue between the parties. The Panel finds that Student 1’s reasonable expectation of privacy in the attendance records and when he had an Individualized Education Plan in place is minimal. The Panel finds that Member has successfully met the first step of the O’Connortest with respect to the records relating to Student 1’s attendance and the dates from which he had an IEP that arguably provided him with access to [XXX] assistance during the time period specified in the Notice of Hearing. The information in those records being sought by the Member may be “logically probative to an issue at trial” (O’Connorat paragraph 22). The Panel disagrees with the suggestion that the Member was seeking these records solely to challenge Student 1’s credibility. The Panel does not, however, consider Student 1’s transcripts relevant to this issue of when the Member established her relationship with Student 1 (and finds that they are protected by the privilege in subsection 266(2) of the Education Act in any event).

47Accordingly, the Panel grants the Member’s motion for the production of certain records relating to Student 1 and orders the Toronto District School Board to produce Student 1’s attendance record and the dates that Student 1 had an Individualized Education Plan for the period from September 1, [XXX] to September 30, [XXX]. The Panel does not order the production of Student 1’s transcripts or the Individualized Education Plan itself.

48The Panel will review the documents and information it receives from the Toronto District School Board and will conduct the second step of the O’Connortest to determine what should be released to the parties, including what measures may be appropriate to preserve the privacy interests of Student 1. A 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.

Footnotes

1. 1The motion was originally set for August 5, 2020 and was adjourned to November 18, 2020 to be heard with a motion to address the issue of the Panel’s jurisdiction to hear the merits of the matter: Ontario College of Teachers v. Byam, 2020 ONOCT 180(“Adjournment Motion”). On November 18, 2020, the Panel heard the motion on jurisdiction. The jurisdiction motion continued and was concluded on December 2, 2020, after which the Panel heard the motion for the production of third-party records.
2. 2Independent Legal Counsel provided advice that the Member’s request for the Member’s College records would not be considered a production request because the records were not third-party records. Member’s Counsel confirmed at the beginning of the third-party records motion, that the motion is for Student 1’s [XXX]records and Ontario Student Records. The Panel therefore declines to make a ruling on the request for the Member’s College records.
3. 3While the Amended Notice of Motion refers to a request for disclosure, the Panel understood the Member’s motion to be a request for a production order, not an order for disclosure.