SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-09-378776
MOTION HEARD: JANUARY 22, 2013

RE: Alana Robinson

v.

Northmount School for Boys, L.L. and J.L.

BEFORE: MASTER R.A. MUIR

COUNSEL:
Angelo Sciacca for the plaintiff
Claudia Scherman for the defendant Northmount School for Boys
Amanda Smallwood for the defendants L.L. and J.L.

REASONS FOR DECISION

[1] The plaintiff brings this motion pursuant to Rule 34.15 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) for an order that the defendant Northmount School for Boys (“Northmount”) answer certain questions it refused to answer on its representative’s examination for discovery held January 20, 2011. A number of the issues on this motion were resolved prior to argument, but several refused questions remained in dispute.

BACKGROUND

[2] The plaintiff is a teacher. She was employed by Northmount for two years between 2005 and 2007. Northmount is a private Catholic elementary school located in the City of Toronto. Northmount was founded in 1990 and offers classes for boys from junior kindergarten to grade eight.

[3] The defendant L.L. was also employed as a teacher at Northmount during the time period relevant to the issues in this action. The defendant J.L. is the husband of the defendant L.L. The son of L.L. and J.L. was enrolled as a student at Northmount and was taught by the plaintiff.

[4] During the 2006-2007 academic year a dispute arose between the plaintiff and L.L. The dispute was a result of what the plaintiff describes as her concerns about the academic performance of L.L.’s son.

[5] In May 2007, Northmount became aware of various allegations being made against the plaintiff by L.L.’s son. Those allegations included alleged physical abuse. Northmount immediately retained an investigator, Tom Clark, to look into those allegations. Ultimately, Mr. Clark’s report concluded that there was insufficient evidence to substantiate the allegations of abuse.

[6] The plaintiff’s employment with Northmount ended on June 1, 2007. On June 7, 2007 an open meeting of parents and students was held at the school. The plaintiff alleges that during the course of that meeting, the defendants L.L. and J.L. made defamatory statements with respect to the plaintiff’s conduct in relation to their son. In addition, it appears that the defendants L.L. and J.L. filed a complaint about the plaintiff with the Toronto Police Service. The Toronto Police Service apparently investigated the complaint. No charges were ever laid against the plaintiff.

[7] It appears that the Catholic Children’s Aid Society (“CCAS”) also conducted an investigation with similar results.

[8] This action was commenced on May 15, 2009. The plaintiff claims damages from Northmount for breach of her employment contract. She claims damages from L.L. and J.L. for defamation, malicious prosecution and inducing breach of contract.

EXAMINATION FOR DISCOVERY OF NORTHMOUNT

[9] Northmount’s representative was examined for discovery on January 20, 2011. Northmount refused to answer a number of questions asked by the plaintiff’s counsel. A few of those refused questions were ultimately resolved by the parties but four questions were argued before me on January 22, 2013.

[10] The disputed questions can be summarized as follows:

Q. 319 – Produce Mr. Clark’s complete file;

Q. 354 – To advise if Northmount has any information that the plaintiff bullied any other students at Northmount;

Q. 412 – To advise which parents, and other persons, were invited to the June 7, 2007 meeting and who attended the meeting; and,

Q. 554 – To provide the name of the parent that approached a member of Northmount’s board with information that she knew of the CCAS investigation into the plaintiff’s conduct.

[11] The plaintiff also seeks production of unredacted copies of Northmount’s Schedule “A” documents. The redactions were made by Northmount in order to remove any references to non-party students and parents.

[12] Northmount takes the same position with respect to all of the plaintiff’s outstanding requests. It does not dispute the relevance of the information sought by the plaintiff. It argues, however, that it is prevented from answering the outstanding questions and making any of the related production by virtue of the privilege established by section 266(2) of the Education Act, R.S.O. 1990, c. E.2 (the “Act”). Northmount argues that by providing the requested answers and documents it will reveal information about non-party students that may also be found in the non-party students’ records, which would amount to a breach of section 266(2) of the Act.

[13] The defendants L.L. and J.L. take no position on this motion insofar as it affects non-parties. They have consented to a waiver of the privilege in respect of their son.[^1]

ANALYSIS

[14] The relevant portions of the Act are attached as Schedule A to these reasons for decision. The important elements of the legislation, for the purposes of this motion, can be summarized as follows:

● every principal has a duty to collect information for inclusion in a record (the “OSR”) in respect of each student enrolled in the school [section 265(1)(d)];

● the OSR is privileged and is not available to any other person and is not admissible as evidence for any purpose in any trial, inquest, examination, hearing or other proceeding [section 266(2)];

● the privilege can be waived with the written permission of the student’s parent or guardian [section 266(2)];

● no person can be compelled to give evidence in respect of the content of an OSR [section 266(9)]; and,

● every person shall preserve secrecy in respect of the content of the OSR that comes to the person’s knowledge in the course of his or her duties of employment [section 266(10)].

[15] The Act does not set out the specific contents of the OSR. However, section 8(1) of the Act does grant the Minister of Education the power to issue guidelines respecting student records. The Minister has done this in a document entitled The Ontario Student Record (OSR) Guideline (the “OSR Guideline”). The most recent version of this document appears to have been issued in March 2000. The relevant excerpts from that document are attached as Schedule B to these reasons for decision. The important elements of the OSR Guideline, for the purposes of this motion, can be summarized as follows:

● an OSR consists of an OSR folder, report cards, an Ontario student transcript, a documentation file, an office index card and any additional information identified as being conducive to the improvement of the instruction of the student;

● the OSR folder must contain, among other things, the student’s biographical data, including his or her full name and date of birth along with the names of the student’s parents; and,

● the office index card must record, among other things, the student’s current address and telephone number.

[16] Northmount’s position is quite simple. If it answers the disputed questions and produces the unredacted versions of the requested documents, as set out above, it will be revealing the contents of the OSR, which would amount to a breach of the privilege. The Act prohibits such disclosure by a school in almost all situations and certainly prohibits the disclosure in the context of a private lawsuit such as this.

[17] The plaintiff argues that the privilege and confidentiality provisions of the Act do not go that far. She agrees that the actual documentary contents of the OSR are privileged but not necessarily the information found in those documents. However, the plaintiff is not seeking the production of those documents. The information that will be revealed by the answers to the plaintiff’s requests is, for the most part, limited to the names and contact information of non-party students and parents who may have information relevant to the matters in issue in this action.

[18] I find the plaintiff’s interpretation of section 266(2) of the Act to be quite persuasive in the circumstances of this motion. If it were not for the decision of Justice Rivard in Pandremenos v. Riverdale Collegiate Institute, [1998] O.J. No. 1480 (G.D.) I would find in favour of the plaintiff on this motion.

[19] In my view, the relevant portions of the Act make it clear that it is the OSR file itself that is privileged and not necessarily all of the information that may find its way into the OSR. Section 266(2) of the Act creates the privilege. It provides that “a record [that is, the OSR] is privileged” [emphasis added]. It says nothing about the specific information that section 265(1)(d) of the Act requires the principal to collect for inclusion in the OSR. This is to be contrasted with sections 266(9) and 266(10) of the Act. Section 266(9) states that “no person shall be required in any trial or other proceeding to give evidence in respect of the content of a record” [emphasis added]. Section 266(10) provides that “every person shall preserve secrecy in respect of the content of a record” [emphasis added]. It is noteworthy that the word “content” is absent from section 266(2).

[20] In my view, if the legislature had intended to extend the privilege to any piece of information that may end up in an OSR (such as something as basic as a student’s address or date of birth, for example) it would have used much broader language that would clearly extend the privilege to the contents and to all information that may be found in an OSR. In my view, the interpretation suggested by Northmount could lead to an absurd situation where certain basic information about an individual could never be disclosed or introduced into evidence in a civil proceeding simply because he or she happens to be a student to whom the Act applies and the information in question can also be found in his or her OSR.[^2]

[21] There would appear to be very little jurisprudence dealing with section 266(2) of the Act. Some support for the plaintiff’s interpretation can be found in the decision of the Provincial Court – Family Division in Children’s Aid Society of the Regional Municipality of Waterloo v. L. (T.), [1990] O.J. No. 1174 (Prov. Ct.) at pages 4-5. In that decision, Justice Campbell adopted a narrow interpretation of the privilege. L. (T.) involved a request for copies of notes kept by a student guidance counsellor. The court concluded that the privilege under the Act did not extend that far and that the counsellor’s notes could be disclosed. This narrow interpretation was also followed in a decision of the Superior Court of Justice in Children’s Aid Society of Ottawa v. S. (N.), 2005 7661 (ON SC), 2005 CarswellOnt 1084 (S.C.J.) at paragraph 7. Both of these cases were proceedings under the Child and Family Services Act, R.S.O. 1990 c. C.11 in respect of children in need of protection. Both involved motions brought by the biological parents of the children in question. The children had been removed from their parents and placed in the care of the local Children’s Aid Society. The parents in both proceedings wanted access to documents in their respective child’s OSR.

[22] However, it is my view that those decisions turn on the narrow fact that the counsellor’s reports in question were not documents or information that were specifically required to be included as part of the OSR. See L. (T.) at page 3 and S. (N.) at paragraph 7.

[23] Pandremenos, on the other hand, was an appeal from the order of Master Peppiatt dealing with a specific request for the names and addresses of certain students. Pandremenos involved an action by a student for damages for personal injuries allegedly suffered while on school property. Liability was in issue. The plaintiff student wanted disclosure from the school of the names and addresses of all other students in the class at the time of his accident. Presumably, those other students would be important witnesses on the issue of the school’s liability for the accident.

[24] The court ruled that the question need not be answered. The information the plaintiff was seeking was protected by the privilege under the Act. At paragraph 6 of his decision, Justice Rivard states as follows:

6 Section 266 of the Education Act is relevant in this regard. Section 266 provides that a record is privileged and such record is not available for any person 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. The record, which is referred to in the Education Act, includes the name and the address of the student and it is my view that the Education Act makes that information which is with the School Board privileged and cannot be disclosed without the written permission of the student, or of the parent of the student, if a minor.

[25] In my view, this decision is clearly on point and binding on this court. The court in Pandremenos concluded that a student’s name and address were a required part of the OSR and were therefore protected by the privilege. The facts before Justice Rivard are very similar to the facts before me on this motion. The plaintiff was seeking the names of non-party students who may have been potential witnesses to his accident. Justice Rivard ruled that those names were protected by section 266(2) of the Act and that they should not be disclosed. I am simply unable to distinguish the situation in Pandremenos from the facts of the matter before me.

[26] Moreover, I do not read Justice Sheffield’s decision in S. (N.) as being inconsistent with Pandremenos. The decision in S. (N.) turned on the fact that the guidance counsellor’s notes and reports were not specifically required to be placed in the OSR. Moreover, the notes and reports being sought in S. (N.) (and in L. (T.) as well) involved only the child that was the subject of the proceeding. No information was being sought with respect to non-party students.

[27] On this motion, the plaintiff seeks the names and contact information of students and others who may have information relevant to the matters in issue in this action. Such information would appear to form part of the OSR of any student. Pandremenos certainly stands for the proposition that names and addresses of students are in fact part of the OSR and are covered by the privilege established by section 266(2) of the Act. Such information cannot be disclosed without the appropriate consent. For the reasons I have set out above, I respectfully disagree with Justice Rivard’s conclusion in this regard. I do not accept that the basic information the plaintiff is seeking is covered by the OSR privilege. The plaintiff’s counsel submitted that Pandremenos was wrongly decided and should not be followed. That, however, is not for me to decide. In my view, I am obligated to follow Justice Rivard’s decision in the circumstances of this motion.

[28] The plaintiff argued in the alternative that even if I find that the information and documents she is seeking are covered by the privilege established by section 266(2) of the Act, I nevertheless retain the discretion to order the disclosure. This exercise would involve balancing the privacy interests of the students with the right of the plaintiff to present her case at trial and would perhaps involve establishing certain safeguards in order to limit the impact on the privacy of non-parties. This is the approach taken by Master Dash in Nurse (Litigation Guardian of) v. Kawartha Pine Ridge District School Board, 2005 CarswellOnt 3184 (S.C.J. – Master) at paragraphs 17 and 23.

[29] I have read Master Dash’s decision and the authorities he relies upon. I am simply not persuaded that it is appropriate for the court to engage in such a balancing exercise when dealing with the privilege under section 266(2) of the Act. The language found in section 266(2) is clear. The OSR “is not admissible in evidence for any purpose in any trial, inquest, inquiry, examination, hearing or other proceeding”. The authorities relied upon by Master Dash do not deal with the privilege created by the Act or any other legislation. They deal with the disclosure of information that was merely confidential and involved an analysis of whether the interests served by protecting the information from disclosure outweigh the interest in getting to the truth. If this motion were only dealing with the confidentiality provisions of sections 266(9) and 266(10), I may have come to a different conclusion. However, it is my view that the legislature has made a clear decision when it comes to the OSR. It is not for this court to second guess that decision. Regrettably, I must respectfully disagree with my colleague’s conclusions in Nurse.

CONCLUSION

[30] I have therefore concluded that Northmount need not answer the questions in dispute or produce unredacted versions of the documents requested by the plaintiff. The only exception to this order is if such disclosure can be made without identifying non-party students (or without doing so indirectly by identifying their parents). It may be, for example, that individuals were present at the June 7, 2007 meeting who were neither students nor parents. In all other respects, the plaintiff’s motion is dismissed.

[31] If the parties are unable to agree on the issue of the costs of this motion they may make brief submissions in writing by no later than March 1, 2013.

[32] Finally, I want to thank all counsel for their very helpful and thorough submissions.

Master R.A. Muir

DATE: February 14, 2013

SCHEDULE A

RELEVANT EXCERPTS FROM THE Education Act, R.S.O. 1990, c. E.2

8. (1) The Minister may,

9. issue guidelines respecting pupil records and require boards to comply with the guidelines;

10. (1) It is the duty of a principal of a school, in addition to the principal’s duties as a teacher,

(d) in accordance with this Act, the regulations and the guidelines issued by the Minister, to collect information for inclusion in a record in respect of each pupil enrolled in the school and to establish, maintain, retain, transfer and dispose of the record;

266. (1) In this section, except in subsection (12),

“record”, in respect of a pupil, means a record under clause 265 (1) (d).

(2) 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 the 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.

(9) Except where the record has been introduced in evidence as provided in this section, no person shall be required in any trial or other proceeding to give evidence in respect of the content of a record.

(10) Except as permitted under this section, every person shall preserve secrecy in respect of the content of a record that comes to the person’s knowledge in the course of his or her duties or employment, and no such person shall communicate any such knowledge to any other person except,

(a) as may be required in the performance of his or her duties; or

(b) with the written consent of the parent or guardian of the pupil where the pupil is a minor; or

(c) with the written consent of the pupil where the pupil is an adult.

SCHEDULE B

RELEVANT EXCERPTS FROM The Ontario Student Record (OSR) Guideline

3. COMPONENTS 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 of the instruction of the student

3.1 The OSR Folder

Principals must establish an OSR folder, Form 1A (see appendix A), for students enrolling in school for the first time after September 1, 1985. For students attending school who enrolled in school before that date, the OSR folder Form 1 must be adjusted to correspond to Form 1A (see appendix B). The folder will contain the parts set out below in sections 3.1.1 to 3.1.7.

3.1.1 Biographical data: Part A

The following information will be provided:

• the student's full name and date of birth (The principal will indicate the method of verification on the folder – e.g., birth certificate, baptismal certificate, passport – and will initial and date the folder.)
• a student number assigned by the school or the school board, where applicable
• a Ministry Identification Number (MIN) or Ontario Education Number (OEN) assigned by the ministry, where applicable.

3.1.4 Names of parent(s): Part D

The following information will be provided:

• the first name of the student's parent(s) or the first name and surname of the student's parent(s) when the surname of the latter differs from that of the student
• if applicable, the date of death of the parent(s) of a student opposite the name of the deceased.

3.5 The Office Index Card

The office index card provides the school with immediate access to information about a student. It will remain at the school during the period in which the student is enrolled at the school. The card is not filed in the OSR folder and is not transferred with the OSR when the student transfers from the school. A sample office index card is provided in appendix E.

The office index card will record the following information:

• the full name of the student, as recorded on the OSR folder
• the number assigned to the student by the school or school board, where applicable
• a Ministry Identification Number (MIN) or Ontario Education Number (OEN) assigned by the ministry, where applicable
• the gender of the student
• the student's date of birth (year, month, day)
• the name(s) of the student's parent(s)
• if applicable, the name(s) of the individual(s) who has (have) custody of the student
• the student's current address and home telephone number, as well as an emergency number if one has been provided
• the dates (year, month, day) on which the student enrols in the school, transfers from the school, and/or retires from school
• the name and address of the school to which the student transfers and the date on which the OSR is transferred
• the student's address on the date of transfer or retirement
• the name and address or some other means of identification of the school from which the student is transferring or retiring
• other information that is identified in accordance with the policies established by the school board (see section 2)

When a student transfers to another school, or to a private, federal, or First Nation school, or retires from school, the office index card will be stored at the sending school or at a central record office provided by the board.

4. ACCESS TO THE OSR

4.5 Courts and Law Enforcement Agencies

Subsection 266(2) of the Education Act states that the OSR will not be produced in the course of any legal proceedings. There may be occasions, however, when access to the OSR of current students or former students will be sought. In such cases, boards should obtain legal advice from their lawyers in order to deal with such issues as the following:

• whether the Education Act in fact prevents the production of the OSR
• whether the OSR in question is relevant to the proceedings
• if the OSR is relevant to the proceedings, whether a copy, rather than the original, may be submitted to the court

All of these issues are relevant in both civil and criminal cases (see section 4.5.1 and section 4.5.2).

Both the municipal and provincial freedom of information acts permit disclosure of personal information for the purposes of law enforcement. The conditions for disclosure and the definition of “law enforcement” are contained in the legislation. School boards should consult with their freedom of information coordinators and their legal counsel to determine whether they should develop policies on the disclosure of personal information in an OSR to courts and law enforcement agencies.

In court proceedings, subject to an appeal, the judge's order must be followed. If a principal receives a court order requiring the release of an OSR, the principal should contact the board's legal counsel. Although court orders must be followed, the principal should obtain legal advice about the issues listed above.

4.5.1 Civil suits

A principal may be served with a subpoena requiring that he or she appear in court on a particular date and bring part or all of an OSR. If a principal receives a subpoena, he or she must comply with it, but should obtain legal advice from the board's legal counsel about the issues in section 4.5 above.

As a general rule, the principal should go to court with both the original OSR and a complete and exact photocopy of it, and should propose to the judge that the photocopy be submitted instead of the original. The principal should also inform the judge that the subpoena is inconsistent with subsection 266(2) of the Education Act. The principal must, however, relinquish the documents if ordered to do so by the judge.

[^1]: Before I would allow this motion to proceed I ordered that Northmount provide notice of this matter to the parents of all students who may potentially be affected by the order sought by the plaintiff. None of those non-party parents appeared at the hearing of the motion although I was advised by Northmount’s counsel that at least some were opposed to the release of the requested information.

[^2]: Of course, I acknowledge that there may be circumstances where the information requested is so extensive that it would be tantamount to a request for disclosure of the OSR itself. However, that is not the situation before the court on this motion.