Court File and Parties

Court File No.: CV-16-549586 Motion Heard: 2018 11 22

Superior Court of Justice - Ontario

Re: Massimo Gargari v. Toronto Catholic District School Board

Before: Master R.A. Muir

Counsel: Nicholas Sampson, for the plaintiff Baktash Waseil, for defendant

Reasons for Decision

[1] The only remaining issue on this motion is a request by the plaintiff for production of a class register setting out the last names of students that may have been in an elementary school class with the plaintiff in 1983-1984. This is a historical abuse case and the plaintiff takes the position that the other students in his class at the time may have been witnesses to the alleged abuse. The plaintiff seeks the names and contact information of the other students.

[2] The defendant disputes the relevance of this information and also argues that an order for production of the last known contact information would place an undue burden on the defendant. However, its main objection is that it is prohibited from disclosing the information by virtue of the Municipal Freedom of Information and Protection of Privacy Act, RSO 1990, Chapter M.56 (the “MFIPP”).

[3] In my view, this motion is premature. The requested records appear to be covered by MFIPP. They are education records which appear to fall within the definition of “personal information” in section 2 of the MFIPP. Section 14 of the MFIPP sets out a procedure to be followed where a person seeks disclosure of the personal information relating to other persons. The MFIPP also provides an appeal process from any such determination. The plaintiff has not availed himself of this process. I do not know whether or not any such application would result in the release of the requested information to the plaintiff.

[4] I appreciate that the MFIPP contains provisions that allow for the release of personal information as part of litigation or pursuant to a court order. However, it is my view that the legislation when read as a whole requires that some resort should be made to the process under the MFIPP before seeking a form of exemption pursuant to section 51 of the Act. I note that the cases relied upon by the plaintiff are silent as to whether any such process was followed before resorting to court order in those matters. The parties did not provide the court with any authorities that deal with the question of whether a person must exhaust the procedures in the Act before seeking a court order for production. The plaintiff has not provided any explanation as to why he could not have followed the procedure in the MFIPP.

[5] Finally, I note that the information requested involves education records for individuals who were approximately eight years old at the time. Some care must be taken to protect the privacy of those individuals who were children at the time.

[6] The relief requested with respect to the production of the student register is dismissed without prejudice to the plaintiff seeking that relief again after exhausting his remedies under the MFIPP.

[7] In my view, this motion involved a novel point of law, at least based on the authorities provided to the court. It is therefore fair and reasonable that there be no order for the costs of this motion.

Master R.A. Muir

Date: 2018 11 22