Ontario College of Teachers v. Byam, 2022 ONOCT 97

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Byam 2022 ONOCT 97

Date: 2022-10-26

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 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”). 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. The Member attended the motion and had legal representation.

2On September 19, 2022, the Panel rendered its decision with respect to the Member’s motion as it concerns the first stage of the legal test for production of Student 1’s records from the[XXX], as set out by the Supreme Court of Canada in R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668. The Panel also provided its decision and reasons with respect to the first stage of the legal test for the production of various records from the Toronto District School Board (“TDSB”) for Student 1, as set out by the Supreme Court of Canada in R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411 (the “O’Connor Test”).¹ Specifically, the Panel previously made 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 attendance record and dates of Individualized Education Plans, for the period from September 1, [XXX] to September 30, [XXX].

3In the reasons that follow, the Panel addresses the second stage of the O’Connor Test for the TDSB records and finds that the following documents should be produced to the parties: the daily and period attendance records of Student 1 for the period of September 1, [XXX] through September 30, [XXX]. The codes in the “Attend Code” column, the words in the “Reason Code” column and the comments in the “Comments” column identifying the reasons for Student 1’s absence from school (or tardiness) will be redacted prior to release of the records to the parties. In place of this information, the Panel will identify whether Student 1 was “absent”, or “late” for each period in the “Comments” column.

4The Panel will also provide the parties with the email from the TDSB of October 5, 2022, which explains that the TDSB was unable to locate attendance records for the [XXX] school year and was similarly unable to determine the dates that Student 1 may have had an Individualized Education Plan (IEP) in place for the period from September 1, [XXX] to September 30, [XXX]. As these records are not available, the Panel was not able to review them in order to determine whether they should be produced to the parties.

A. PUBLICATION BAN

5On 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.

6Additionally, 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. DECISION ON MOTION

7The Panel finds that the balance of interests favours production to the parties of the attendance records of Student 1 for the [XXX] and [XXX] school years, as well as for September [XXX]. The Panel has applied redactions to protect the privacy of Student 1 and any other individuals regarding sensitive personal information where production could not appreciably assist the Member in making full answer and defence. The Panel has also redacted information that is plainly irrelevant to the Member’s request.

C. REASONS FOR DECISION

8At the second stage of the O’Connor Test, the Panel must assess “true relevance”² to the case against the Member by screening the documents that it ordered third parties to produce for information that is material to the Member’s defence. Then, the Panel must examine and weigh the costs and benefits of a production order. More particularly, the Panel must determine if, after considering the reasonableness of the intrusion that releasing the records will on privacy interests vested in the records, production of records should be made to the parties. Or, if production should be denied, “whether a non-production order would constitute a reasonable limit on the ability of the accused to make full answer and defence.”³

9In making this determination, the Panel considered the following factors set out in O’Connor (the “O’Connor 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.⁴

10After examining the competing considerations regarding the attendance records of Student 1, the Panel finds that the O’Connor factors weigh in favour of production of the partially redacted attendance records of Student 1 to the parties.

11The Panel finds that the attendance records touch on the allegations at issue in this case and that most of their contents should be produced based on the Member’s right to make full answer and defence, and on the probative value of the records. The Member argued during her motion that the dates of her alleged inappropriate conduct and inappropriate relationship with Student 1 were live issues between the parties. The Member therefore sought the attendance (and IEP) records of Student 1 to establish when Student 1 attended school and could have received assistance from the [XXX] Department at the school, and thus when the Member could have established her alleged relationship with Student 1.

12The Panel notes that the TDSB was unable to locate the archived attendance records for the [XXX] school year, and was similarly unable to determine the dates in which Student 1 may have had an IEP during the period from September 1, [XXX] to September 30, [XXX]. However, to the extent that information in the attendance records provided may demonstrate whether certain events could have taken place on certain dates, it is relevant to the Member’s ability to defend against the allegations and has high probative value. The TDSB records received by the Panel indicate Student 1’s attendance in his various classes, identified by class code. Whether Student 1 was at school, and thus could have been in contact with the Member during any of his classes, is within the scope of the issues before the Panel.

13The Panel assessed the records on the remaining three O’Connor factors and determined that attendance records are a form of evidence where, once properly redacted, the nature and extent of the privacy interest is low, which weighs in favour of production. Daily attendance records showing who was absent or late during each school period are known to teachers, school administrators and the Board and the fact of releasing them is not premised on any bias. Further, Student 1 did not oppose the Member’s request for production of his school records.

14The Panel notes, however, that the attendance records contain attendance codes and comments which identify the reasons for Student 1’s absences from class. The Panel considers this information to be irrelevant to the Member’s rationale for requesting the records. The Panel finds that it is unnecessary to identify the reason for any of Student 1’s absences, and that it is sufficient for the Member to know whether Student 1 had been absent or late to a particular class on a particular day. The Panel has therefore redacted the information in the “Attend Code”, “Reason Code” and “Comments” sections of the attendance records. The Panel has instead noted in the “Comments” section whether Student 1 was “Absent” or “Late” on a particular day. The Panel is satisfied that these redactions sufficiently address the potential prejudice to the dignity, privacy or security of Student 1 and other individuals mentioned in the records.

D. Conclusion

15The Panel hereby orders the production of the redacted daily and period attendance records for Student 1 to Counsel for the Member, to College Counsel, and Counsel for the Complainant (Student 1).

Footnotes

1. 1R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411 [O’Connor].
2. 2R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66 at para. 36.
3. 3O’Connor, supra note 1 at para. 30.
4. 4Ibid. at para. 31.